STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS & MOBILE HOMES IN RE: PETITION FOR ARBITRATION MARK KOSLAGA, Petitioner, v. CASE NO.: 2003-04-4384 ATLANTIC APARTMENTS, INC., Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Land Sales, Condominiums and Mobile Homes convened a formal hearing in this case on August 25, 2003, by telephone conference. During the hearing, both parties presented the testimony of witnesses and tendered documents into evidence. The parties submitted proposed recommended orders after the conclusion of the hearing. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: For Respondent: Andrew S. Goldwyn, Esquire Paley & Goldwyn, P.L. 455 Fairway Drive Suite 104 Deerfield Beach, Florida 33441 Michael R. Emery, Esquire Carvo & Emery, P.A. One Financial Plaza 1
Suite 2020 Ft. Lauderdale, Florida 33394 STATEMENT OF THE ISSUE Whether the petitioner was provided with timely access to the official records of the association and, if not, whether the association s failure to timely provide the petitioner with access to the official records of the association was willful. PROCEDURAL HISTORY On February 27, 2003, Mark Koslaga (petitioner/unit owner) filed a petition for arbitration naming Atlantic Apartments, Inc. (respondent/association) as the respondent. The petitioner alleged that association had failed to provide him with timely access to the official records of the association and requested damages pursuant to section 719.104, Florida Statutes (2003). On April 4, 2003, the association filed an answer to the petition. In its answer, the association denied that it had failed to provide timely access to it s official records. The association further alleged that petitioner was provided access to the official records, that petitioner s request for inspection was unreasonable and that any alleged failure of the association to comply with petitioner s request was not willful. FINDINGS OF FACT 1. The respondent is a cooperative association as defined by chapter 719, Florida Statutes. 2. The petitioner is a shareholder of the cooperative operated by the respondent association. 2
3. On October 31, 2002, the petitioner sent, via certified mail, a letter addressed to the association requesting the opportunity to inspect the official records of the association. 4. The petitioner s October 31, 2002, letter was similar to a previous request to inspect the official records sent by petitioner on April 5, 2002. All of the documents requested in April 5, 2002, letter were provided to petitioner. The petitioner s has repeatedly requested the same documents from the association, or nearly the same records, on a continuing basis. 5. On November 19, 2002, the petitioner again sent a letter, via certified mail, to the association requesting access to the official records of the association. 6. The respondent received the October 31, 2002, letter on November 16, 2003. Marybeth Goodburn, president of the association, responded to the October 2002, letter on November 19, 2002, informing the petitioner that she was not up to dealing with the requests. The letter does not state when the association will provide the petitioner access to the records he had requested. 6. Ms. Goodburn received the November 19, 2002, letter on December 3, 2002. The association never responded to the November 19, 2002, letter from the petitioner. 7. Ms. Goodburn testified that she believed that the requests made by the petitioner were duplicate requests and that the petitioner had already received the records he had requested. 3
8. On November 29, 2002, the petitioner sent a letter to the association indicating that he had filed a complaint with the division as a result of the association s failure to provide access to the records. The petitioner demanded immediate access to the records. 9. In response to the November 29, 2002 letter, an inspection of the records was scheduled for January 2 and January 9, 2003, after arranging the dates with petitioner. 10. Andrew Connolly, Esq., testified that the petitioner reviewed the records requested in the October 31, 2002, and November 29, 2002, letters on January 2 and 9, 2003 in his office for a total of two (2) hours on each day. follows: CONCLUSION Section 719.104(2)(b), Florida Statutes, provides in pertinent part as The official records of the association shall be open to inspection by any association member or the authorized representative of such member at all reasonable times. Failure to permit inspection of the association records as provided herein entitles any person prevailing in an enforcement action to recover reasonable attorney's fees from the person in control of the records who, directly or indirectly, knowingly denies access to the records for inspection. 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 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 with this paragraph. The minimum damages shall be $50 per 4
calendar day up to 10 days, the calculation to begin on the 11th day after receipt of the written request. The association failed to provide the petitioner with timely access to the official records of the association as required by Section 719.104(2)(b), Florida Statutes, on two occasions. 1 The failure to permit inspection of the association records entitles any unit owner prevailing in an enforcement action to recover damages where an association willfully denies access to the official records. The association s argument that the petitioner had previously requested these records on numerous occasions is unpersuasive. Nothing in section 719.104, Florida Statutes, prohibits a unit owner from making repeated requests for access to the same records. Moreover, section 719.104, Florida Statutes, states that the association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying of official records. The respondent here has adopted no such rules or regulations. The association cannot, however, simply refuse to deal with the multiple requests or state that the petitioner has previously had access to the records as a basis for denying access to the official records. 1 In his petition for arbitration the petitioner list two instances where the association had denied him timely access to the official records, October 31, 2002, and November 29, 2002. The proposed recommended order submitted by the petitioner, however, requests damages for three violations. The third violation stems from the request for records contained in the pre-arbitration demand letter sent to the association by the petitioner s attorney on January 28, 2003. This letter is properly viewed as a continuation of the previous two records requests and not a request in and of itself, entitling the petitioner to damages. Furthermore, the January 28, 2003, letter was not listed in the petition as a violation for which the petitioner sough damages and as such no damages will be awarded based upon this alleged violation. 5
Numerous or repeated requests made by a unit owner have been deemed to rebut the presumption of willfulness. See Coventry Place Condominium Association, Inc. v. Little et al., Arb. Case Nos. 95-0044, 95-0045, Final Order (February 21, 1996) (The association s failure to provide timely access to a limited amount of records, where most of the records requested were timely provided, was not willful where the record demonstrates that the association was aware of respondents right of access to the records and consistently endeavored to provide requested records in a timely manner. A portion of the confusion stemmed inevitably from the fact that the respondents requests were very frequent, encompassing, and comprehensive.) However, unlike Coventry, the three requests made by the petitioner over a 7 month period in the instant case hardly constitute frequent, encompassing nor comprehensive requests that would negate the presumption of willfulness. see also, Aldrich v. Tahitian Gardens Condominium Association, Inc., Arb. Case Nos. 96-0055, 96-0070, Summary Final Order (Aug. 5, 1996)(where the unit owner s requests for records access were included in the same envelope as other correspondence to the association, a procedure that was inherently capable of generating confusion and administrative error, the unit owner assumed the risk that the association would err in processing the request.); Richardson v. Sierra Condo. Apartments Assn., Inc., Arb. Case No. 99-0262, Summary Final Order (March 22, 1999)(the association violated the records statute where it refused to provide access due to ongoing litigation with the owner. An owner s right is not contingent on the owner having a proper purpose or a lack of ill 6
will.) Kilgore et.al. v. Ciega Verde Unit Owners Association, Inc., Arb. Case No. 00-0747, Summary Final Order (July 3, 2000)(an association cannot refuse access to official records on the ground that access was previously provided). Therefore, the association s failure to grant subsequent access to its records constitutes a violation of Section 719.104(2)(b), Florida Statutes. 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 provide access to the official records of the association. In the instant case, the petitioner was provided access to the records on January 2 and 9, 2003, which is more than 11 days after his requests. The fact that the petitioner has repeatedly requested to inspect or copy virtually the exact same records as he has previously inspected, is not a valid basis to deny the petitioner with access to these records. Accordingly, the association by not providing access to the official records of the association within 10 business days of the petitioner s requests has willfully failed to comply with the provisions of section 719.104, Florida Statutes. Pursuant to Section 719.104(2)(b), 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 7
association s failure extended over thirty (30) days, the maximum amount of damages, $50.00 x 10 days, will be awarded for both violations. Based on the foregoing, it is ORDERED: 1. The relief requested by the petitioner, that the association be required to produce its official records and pay a $50 per day fine, is GRANTED. Within 5 days of the date of this order, the association shall provide the petitioner access to the records. In addition, within 45 days, the association shall pay to the petitioner the sum of $1,000.00. 2. As provided by Rule 61B-45.048, Florida Administrative Code, the petitioner may file a motion for an award of attorney s fees within 45 days of the date of this order. DONE AND ORDERED this 10 th day of November 2003, at Tallahassee, Leon County, Florida. RIGHT OF 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 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. 8
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. 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing final order was mailed this 10 th day of November 2003, to: Andrew S. Goldwyn, Esquire Paley & Goldwyn, P.L. 455 Fairway Drive Suite 104 Deerfield Beach, Florida 33441 Michael R. Emery, Esquire Carvo & Emery, P.A. One Financial Plaza Suite 2020 Ft. Lauderdale, Florida 33394 Richard M. Coln, Arbitrator 10