STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Jose Rosario, Petitioner, v. Case No. 2016-00-2491 Samari Lake East Condominium Association, Inc., Respondent. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether Samari Lake East Condominium Association, Inc. (the Association) failed to permit timely access to its official records. Procedural History On January 11, 2016, Jose Rosario (Petitioner) filed a petition for mandatory non-binding arbitration naming as Respondent Samari Lake East Condominium Association, Inc. (the Association). By Order entered on January 21, 2016, Petitioner was required to file an Amended Petition, and on January 28, 2016, Petitioner made the required filing. On February 1, 2016, an Order Requiring Answer was entered, and the Order was served on the Association on February 5, 2016, by certified U.S. Mail, return receipt requested. On February 17, 2016, the Association filed Respondent s Motion to Dismiss Petitioner. By Order entered on March 1, 2016, the Association s Motion to Page 1 of 5
Dismiss was denied. The Order also struck Paragraphs 2. and 3. of the Statement of the Facts within the Amended Petition, resulting in access to the Association s records as Petitioner s sole remaining dispute. Findings of Fact 1. The Association is the corporate entity responsible for the operation of Samari Lake East, a Condominium. 2. Petitioner is the owner of Unit 2434 within the condominium, and as such, is a member of the Association. 3. By letter dated November 18, 2015, counsel for Petitioner made a request to inspect certain records of the Association. Counsel for the Association admits the letter was received. The website for the U.S. Postal Service shows the letter was delivered on November 20, 2015. 4. The Association did not respond to the November 18, 2015 request to inspect records until after Petitioner s pre-arbitration notice letter, dated December 9, 2015, was delivered to the Association on December 14, 2015, as shown on the U.S. Postal Service website. 5. Sua sponte, the parties filed conflicting affidavits regarding December 29, 2015 as the agreed upon date for inspection of the records, after a letter dated December 17, 2015, was sent by the Association to Petitioner offering certain dates for inspection. Conclusions of Law The Association is an association within the meaning of Section 718.103, Florida Statutes. Pursuant to Section 718.1255, Florida Statutes, the undersigned has jurisdiction Page 2 of 5
over the parties to, and the subject matter of, this dispute. If no disputed issues of material fact exist, the arbitrator may enter a summary final order. Fla. Admin. Code R. 61B-45.030. Section 718.111(12), Florida Statutes, provides, in 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.... (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 right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the 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. Minimum damages are $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. The failure to permit inspection entitles any person prevailing in an enforcement action to recover reasonable attorney fees from the person in control of the records who, directly or indirectly, knowingly denied access to the records. (emphasis added). Petitioner s November 18, 2015 request records request was received by the Association on November 20, 2015. Under the statute, the records were to be made available to Petitioner within 5 working days of the request, i.e. by November 30, 2015. The Association s first response to Petitioner s request for records was not until after December 14, 2015, therefore the Association did not comply with this part of the statute. Under the statute, a rebuttable presumption is created that the Association s failure to provide the records was willful if the Association failed to provide the records Page 3 of 5
within 10 working days after receipt of a written request. Under the facts of this case, a rebuttable presumption is created if the Association failed to provide access to its records by December 7, 2015. The Association failed to provide access by December 7, 2015, therefore a rebuttable presumption is created that the Association s failure to provide access was willful. The Association has not provided anything to rebut the presumption. 1 Accordingly, it is ORDERED: 1. On or before May 9, 2016, the Association shall pay to Petitioner the sum of $500.00 as damages pursuant to Section 718.111(12)(c), Florida Statutes. 2. If it has not already done so, the Association immediately shall make available all the official records requested by Petitioner in this case, and at all times in the future, shall make available official records requested by Petitioner in accordance with Section 718.111(12), Florida Statutes. Florida. DONE AND ORDERED this 25 th day of April, 2016, at Tallahassee, Leon County, Glenn Lang, Senior Attorney Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone: 850-414-6867 / Fax: 850-487-0870 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, 1 The parties conflicting affidavits regarding December 29, 2015, as the agreed upon date of inspection after the Association s December 17, 2015 letter offering certain dates can have no effect, because the offer occurred well after the expiration of the 10 working day window. Page 4 of 5
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 final order has been sent by facsimile and by U.S. Mail to the following persons on this 25 th day of April, 2016: Yudany Fernandez, Esq. Alfaro & Fernandez, P.A. Suite 305 5801 NW 151st St. Miami Lakes, FL 33014 Facsimile: 305-821-5256 for Petitioner Hector Martinez, Esq. FM Law Group, P.A. 14100 Palmetto Frontage Road Suite 390 Miami Lake, FL 33014 Facsimile: 305-827-2273 for Respondent Glenn Lang, Senior Attorney Page 5 of 5