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CONDO
ADVISORY COUNCIL MEETS By Jerry Melvin May 16, 2005 On May 14, 2005 the Advisory Council On Condominiums met at the
Edgewater Beach Resort, Front Beach Road, Panama City Beach, Florida. All members were present: Joe
Adams, Mike Andrew, Michael Cochran, Pete Dunbar, George Geisler, Karen
Gottlieb and Tom Sparks. Present
by telephone hookup was Mark Benson.
Chairman Adams opened the meeting and asked the secretary to note
that a quorum was present. Adams
also asked the secretary to verify that the meeting had been publicized
in a timely manner and that notification had been included in Florida
Administrative Weekly. The next item of business was “Public Input” and I had the
pleasure of being called upon as the first speaker. I made the following brief statement before the Council: (Quote) “I want to thank you for letting me appear before you and for your holding the meeting here in Northwest Florida. I’m here today speaking on behalf of Cyber Citizens For Justice and Jan Bergemann, CCFJ President. I feel that the Ombudsman has proven to be extremely helpful and
effective for Condominium Owners and Associations. I certainly hope this Council will give that office the
support, counsel and assistance it needs in the future. His record of having a 75% rate of solving problems or
satisfying the person’s question is, to me, extremely remarkable.
Now that the Legislature has finally approved funding for the
office, I look forward to an even greater record of accomplishments in
the future.
The lack of proper education of owners and officers and board
members appears to be a major problem that generates complaints and
questions. To me the fiscal note that Department of Business and
Professional Regulations used in HB1229 relative to the cost of
education is extremely excessive and I’m confident there are better
ways to provide needed education at a fraction of the costs stated.
Florida has the nation’s best Community College System, and one
of the main goals of Community Colleges is to provide education to meet
the needs of the residents and businesses of the respective areas.
Let’s get the Community College system to develop a curriculum
that can be used at all Community Colleges so classes may be available
in the various communities where people may take at will.
Another way is to use the Panhandle Education Consortium in
Chipley to provide 24-7 education through computers or by way of the
State Transponder. PAEC now provides training to teachers and administrators on
a 24- 7 basis through computers and through broadcasting to receivers at
each school and other locations. I assure you the education can be
accomplished for a lot less that the DBPR fiscal notations. The lessons
could be transmitted into the various Condo conference rooms or the
centers at HOA communities.” (End Quote) Sparks asked me to provide him with additional information, as he
had already talked with the Community College in Panama City about doing
some form of education. I
told him I would get back to him with whatever information he needed. I did not have a list of those who spoke; therefore, I am listing
names as I heard them. Clay Smith: Smith was
concerned with F.S. 718.113(2)(a).
Smith said that no one seems to be able to give us a definition
of “material alterations.” Smith
is concerned as to whether or not any of the following can be defined as
“material alterations”: Changing
a fence; Changing color of a building; Putting rocks on a weed-grown
area to provide more parking. He
said that if you call Tallahassee, you get several different answers.
He suggested using a definition based upon the dollar value of
the change, and possibly having included in the documents.
Adams said the law already covers the issue and that Smith may
want to include such in his documents.
Smith further stated that his association wanted to buy adjacent
property, but with the 100% rule, it’s just about impossible to get
anything done. Adams or one
of the other Council members said that the law was changed in 2000 to
75%. Mrs. Ross Pritchett:
She said she manages 28 homeowners’ and condo associations and
would like to see F. S. 720 governed by the DBPR.
She said there is presently no recourse.
Rather than having to go to court on each little issue,
homeowners would not mind paying the $4 annual fee, just as condo owners
do, to fund a system like the condos have. If under the DBPR, she said that the DBPR could possibly
alleviate the problems like “transition” and when actions by boards
are outside the covenants. There
was some discussion among Council members as to whether or not there
would be less or more controversy should there be more state control. Mrs. Pritchett said she felt it would require the board
members to be better informed. Pete Dunbar said that in addition to transition and board actions,
what else? He said the DBPR
does not do that type of work, because it is handled by arbitration and
asked if that was what she wanted.
She replied, “Yes.” John Scott: He said he had two
subjects to discuss. First
is “voting by proxy.” He said the controlling group knows they can
change things as they want, because a lot of people do not return their
proxy; therefore, their votes do not count.
He said 10% of the people do not return the proxy so now you need
about 75% approval. He said
the Florida Condo Law provides lots of provisions relative to proxy
voting. He said it
should be based on “those who actually vote and not on the entire
membership.” He discussed
an issue where a condo of 100 units was offered $50 million and out of
the 100 owners, only 2 did not agree; therefore, they stopped the whole
issue. Scott said he thought that to eliminate a condominium, he
suggests change the determination from 100% to 80% and if didn’t get
the 80%, could go to court to have a judge make a determination. Susan Cox: She said she is the
president of an association in Fort Walton Beach. She is also CAM for two condo associations and three
homeowners’ associations. She
said she is very much against putting changes into state laws as long as
there is freedom to place the proposed changes in the local documents.
She would like to see something like a provision requiring “you
must live in a unit for six months out of the year in order to run for
the board.” With respect
to requirements for education of board members, she noted that there are
Community Associations Institute courses available.
With respect to term limits for board members, she said that
every association she has been involved with provides for one-year
terms. She said that as far as complaints given to DBPR, she has
been involved with two such complaints
She said they responded to DBPR as required and that one of the
complaints has been going on for two years and there is still no answer. The other complaint was taken care of in two months.
The Division of Florida Land Sales, Condominiums and Mobile Homes
may tell an owner he doesn’t have a case, but they failed to notify
the association the same thing. She said in Fort Walton Beach she has been in contact with
the Division and with the Ombudsman.
They have received no response from Dr. Rizzo as to whether or
not he will attend the meeting. He
had asked that they furnish him with all the various records, but still
no response for attending the meeting.
Associations should be advised of all complaints filed and all
determinations. Frank Taylor:
He is real estate
manager with Coldwell Banker. He
stated that the legislation that did not get passed (he was referring to
1229) had six or seven items in it that gave no consideration to
time-share investments and owners.
There was no consideration that association boards cannot
foreclose on anyone for less than $2,500.
He pointed out that most time-shares range from $360 to $560
annual maintenance fees so it would take years before action could be
brought. He said
time-shares do not get people willing to serve on boards, because they
are not onsite most of the time. He
said that 1229 was the most atrocious piece of legislation and that it
would destroy the time-share business.
He urged the Council to take action on this type of legislation.
His e-mail address: [email protected]. (Note:
From the moment he started talking, I had the opinion that he had
been coached what to say and how to phrase his statements.) Ron Brady:
Brady said that Brand Lagoon was an apartment building and then
converted to a condo. Before
the developer turns over a property, there needs to be full set of rules
and completed architectural designs and plans.
With respect to education, Brady said it would not be hard to set up
education online, because almost everyone has computers and for those
that do not, videos could be provided. Speaking about insurance, Brady said that every
condominium owner needs to have insurance.
Dunbar asked her if the association had an attorney.
Brady was not quite sure because she was new. Jay Carlisle: He said that his
condo needed insurance. However,
the company quoted them on the entire value of the structure and the
developer’s profits, when all they wanted was insurance on the shell
because each owner had insurance for his own unit. Don Jordan: He asked that all
documents handed out by the Council or produced by the Council or state
contain e-mail addresses, Web site info, press releases, etc. Jack Willie: He said he is
president of an association on the west end of Panama City Beach.
He urged that the Council be very careful on suggestions for term
limits, because his organization has problems getting people willing to
serve. DISCUSSION
OF EDUCATIONAL REQUIREMENTS Although this was not an agenda item, it was brought up as a
special issue. I think it was Adams who said, “It would be great if could
require all to have education, but we’d lose about half the people.”
He said Community Associations Institute has a lot of literature,
tapes, etc. and a person does not have to go to college to be a board
member. He said the CAI
course is voluntary and is paid by the state. He said that because 1229 included mandatory education, the
Council voted to oppose it and that the Council will be looking at all
of the issues. He said
people could buy the CAI courses and study them on their own time. One lady stood and said that she had attended the classes three
separate times and found them to be excellent. She praised Mr. Neuman as being very qualified and said
he does a great job teaching the classes.
(Neuman had conducted a class just prior to the Council meeting.) Bart Kennedy, who is located on the west end of Panama City Beach,
said he has attended two of the classes and found them to be very
worthwhile. J. L. Franklin of Sandestin Resorts also said classes were good. Cox said she agreed that the CIA classes were good, but that in
Destin they are held at 9 AM during the week and people who work have a
very hard time arranging to attend. Judy Honey of Panama City referred to “Condominium, Concept” by
Pete Dunbar. She said that
her association is in a quandary about reserve funding. The condo is 20 years old and thinks the reserve needs
to be increased. The bill
filed would have prohibited waiver of reserves. There was a suggestion
from someone on the Council that perhaps individual owners could set
aside some private funds to cover their own reserve requirements. BUSINESS
MEETING
Adams stated that now that the public had been heard from, they
would begin the business meeting and all were invited to stay if they
wished. He called for approval of minutes of the March 31, 2005 meeting. Dunbar moved they be approved. There was a second. Without objection the minutes were approved. Kara Collins-Gomez, OPPAGA Staff Director, was asked to give her
presentation on the report issued by her agency. (Report No.05-xx, March 2005, “Condominium Program
Should Process Complaints, Disputes Sooner and Enhance Program
Services”) It was confirmed that the report covered data for fiscal year July
2003 through June 2004. Collins-Gomez
said the Division is required to take action on a complaint in 90 days,
but state law does not have a time limit for arbitration. When asked if they looked into declaratory questions, she replied
that they did not. When asked if she looked at what was going on in the community and
if she looked at the Ombudsman to see if his procedures covered some of
the issues, Collins-Gomez replied she did not because the Ombudsman
Office had not been in operation during the period covered by the
report. Condominium
Ombudsman was appointed by Governor Jeb Bush in December 2004. Collins-Gomez said that the legislature needs to state clearly that
they want cases closed in 90 days, if that is what they mean.
Need to be specific in what is meant by “case closure” or
“case action.” It was
brought up that according to the report, if math is worked out, there
are some 50 cases for each investigator within the Department of
Business and Professional Regulations’ Division of Florida Land Sales,
Condominiums and Mobile Homes. When asked whether or not she would have information on the
effectiveness of the Ombudsman Office in the next report, she said that
if the Council or a legislative committee suggested such, then they
could have that info. She
stated that if there are highly developing issues, OPPAGA needs to know
that. Adams said that -- without objections -- he was going to go out of order on the agenda and hear from Colleen Donahue, Administrative Assistant to the Ombudsman. Donahue said she is an attorney and she is Dr. Virgil Rizzo’s administrative assistant. She works out of the Tallahassee Ombudsman Office. For the time being, Rizzo is working out of the south Florida office, using volunteers to assist. Donahue said that from January through March 2005 there had been 3,500 inquiries and that they had recruited volunteers to assist them. 75% of the inquiries have been successfully handled. She said they try to have someone call back in 24 hours on all calls. Dunbar asked if the inquiries have to be in writing. She said some are, but many are simply telephone calls with questions seeking information. Next questions and comments dealt with the “Condominium
Ombudsman Quarterly Report For January Through March 2005,” published
May 9, 2005. Dunbar asked if the Ombudsman was governed by the Administrative
Procedure Act, Chapter 120, Florida Statutes.
He said he had a basic concern that there is some due process
here and he doesn’t think the process is in place. Andrew wanted to know the difference between an inquiry and a
complaint. He said
that they need to be broken down for clarity. Adams said they need to know what type of data the Ombudsman Office
is getting and that it should be broken down by category and also what
information and data is being given out. Referring to Page 5 – Elections:
Andrew said he has very big concerns of focusing on quick rather
than quality information. Cochran said that he is concerned that the Division was never
contacted nor solicited about information in the report.
The first they knew about it was from the news media.
He wanted to know if supporting data is available for the
findings in the report. Donahue
said Cochran could make a request to the Tallahassee office and she was
sure the information would be available.
Cochran asked that on Page 4 of the report citing “…some
CAMS…,” is there back-up information on this issue? Cochran also said on Page 5, first paragraph, talking about “Some
association managers and attorneys…” there should be data with some
number on it to back up such a statement. Also on Page 6 in the middle of the page “…several coalition
groups…” he would like to have the backup information substantiating
the education bidding. On Page 7, it says, “Division provides Rules, etc….”
Cochran wanted to know if there is some analysis or opinions or
is it the Ombudsman’s personal opinion? Geisler wanted to know where the Ombudsman developed his
information – did he visit or phone to get the info, or is it based
upon his personal opinions? Adams read a letter from Dr. Rizzo submitted to the Council. Adams said to him the letter showed a disrespectful approach to working with the Council. He said that the Ombudsman is to make recommendations to the Council and not the other way around. Adams also said he would like a list of all volunteers and where the statutes gives permission for appointing volunteers and what training the volunteers received. Adams said that on Page 4 there is a “…simple problem of
mismanagement...”. He asked what steps were taken on the informational
letter. Adams also stated that there were published rules relating to
elections and monitoring procedures.
He said the Ombudsman has some concern with these rules and that
on May 23 there will be a meeting on the rules. Sparks asked that out of the 3,500 calls, how many were from North
Florida? Donahue said
she would have to check and would get the information.
Sparks also asked if the Ombudsman Office found the CAI education
to be ineffective. He
said the state is spending $500,000 annually on CAI education and that
we need to know if it is effective or not. Andrew said that he has a lot of concerns about the Ombudsman
Office. Dunbar said he thought the letter was not accurate, and implies
that the Ombudsman does not fully understand our activities and that we
would like to have him join us so he can understand and so we can have a
face-to-face meeting. Adams said that Rizzo has been invited, but he has not replied.
Adams said he would write a letter to the Ombudsman outlining the
Council members’ concerns and would ask Rizzo to attend the next
meeting of the Council. There was discussion as to where to hold the next meeting.
At first Broward was recommended.
However, some said that many people in Broward may be up north
during that period of time and maybe Jacksonville would be a good place
to meet. It finally came
around to the fact that since Rep. Robaina had requested a south Florida
meeting, that it would be scheduled for Miami-Dade County during the
third or fourth week of June. A
motion was made to hold such a meeting and the motion carried.
Adams will coordinate with the Department, Rep. Robaina and
others for the best date and place. Adams then referred back to the agenda and called on Dunbar to give
a report on the 2005 legislation. He
said it would be best to talk about the legislation that passed and not
those that failed. Dunbar said only one bill passed, House Bill 219. He questioned
when does the industry interface with 578 if the Governor signs the
legislation? He said to
bring a 558 claim would have to have an architect.
He questions meaning of structural issues. He said he e-mailed around the summary of 281 that makes two
changes regarding F.S. 718. He said that legislation passed requires one single season
insurance deductible. Also, there is provision for extending the
statutory mediation policy. Dunbar said there were several provisions in the appropriations
bill. (I’ll have to get
the particulars, as I did not get all particulars on his report.
I’ll ask him to send me information.) Andrew said that Marriott Time Shares have asked the Governor to
veto CS/SB 1520 because the way it treats “travel clubs” in
deference to “time shares.” There was further discussion of 1520 and it finally resulted in
Adams being asked to write to the Governor to urge him to veto the bill.
It was suggested that perhaps the Ombudsman would do the same.
Andrew abstained from voting because of a possible conflict. A discussion was held on the Election and Monitoring Rules.
Said there needs to be a definition of the Ombudsman’s powers
for appointing monitors and that the proposed rules should be submitted
with the next agenda. Cochran said there needed to be a sufficient time frame to allow
the monitor to do his job. Need to know what is meant by “All Cost.”
What are the costs? Who
is qualified to be a monitor? What
types of fees are charged? If
it’s a public monitor, what is the salary, per diem, etc?
We’ve had no discussions on this. Who is supposed to appoint monitors or select qualified monitors? Andrew said that the Ombudsman Office needs to give its
recommendations to the legislature and its report to the Advisory
Council on Condominiums. Geisler said he thinks the Council needs to have a copy of that
report. He said we should have the report ready in the fall.
We should generate a written report to the administration and the
legislature. Dunbar said he thinks the Council should get the results of the testimony the Council receives at public meeting and write a report on the findings provided to the Council by the public. It was recommended that the report should be ready by December 1,
2005. He also said that in addition to the public testimony received, the
Council should also make its recommendations known in the report. Dunbar said that we all need data. When the Division has an investigation, should notify
the Ombudsman and let him handle the monitor for the issue.
There should be clear divisions of responsibilities between the
Division and the Ombudsman. Adams said through the press and e-mails, the OPPAGA report was
held out to be a “smoking gun.”
He said it was no smoking gun at all.
He said he would like to see a business plan in place.
He thinks that lack of oversight of Ombudsman Office and how the
office is run can cause problems.
He said there is overlapping between Ombudsman Office and the
Division. Responsibilities
should be clarified. Adams said that there needs to be a structural process guiding the
Ombudsman and the Division. He said he was not sure whether the
Administrative Procedure Act (F.S.
Chapter 120) governs this or not. Dunbar wanted to know if the Council can go off on its own -- or does the Advisory Council on Condominiums have to take testimony from the public and then act and make recommendations based on the testimony? Legislative
Recommendations
It was brought up that there are people who cannot receive
certified mail because of lack of a permanent address.
Many people work and do not get certified mail and the cost for
such is a big issue. Gottlieb said that if there is an amendment to the density
document, she thinks it should be notified by certified mail. With reference to Financial Reporting, there is the recommendation
to prohibit waiver of financial reporting. Under Recommendations: Dunbar said many people have not even seen an adjuster.
Wants to know what is meant by "there is a mandatory request
to hire an architect" (which came from Senator Campbell). Dunbar said he thinks there has been created a third category of
assessments. He said they
couldn’t use these reserves and would have to provide for more. Andrew wanted to know what happens to lien-holders.
On Pages 4 to 10, “No action shall be taken or resolutions
made…” Who gives
contract to, etc? Dunbar said this is very premature, especially for small
condominiums. There was a recommendation to eliminate the right to opt out of the
statutes if you have a duplex or some small facility. Dunbar said he likes #9 on Page 5 of 10: Adams asked if he should write a response to the information
submitted by the Ombudsman. The
vote was not to respond. It was pointed out that if the Ombudsman is giving advice, then the
recommendation for providing immunity probably needs to be in place.
(See Page 10 of Legislative Recommendations.) At the end there was discussion concerning the Web page operated by
Mark Benson. Adams said
that if you use Google search engine and type “Advisory Council
on Condominiums,” you go directly to Mark Benson’s website first. It was suggested that Benson be contacted and asked to take down
his website until the Council has a chance to talk with him. |