A Difference Minutes Can Make
Opinion By Jan Bergemann
June 9, 2005
Anyone who reads the minutes of the first
meetings and the draft of the minutes of the recent meeting will very clearly
see where The Powers That Be want to steer the ship called Advisory Council On Condominiums. It’s
pretty obvious that the Council is on a DESTROY mission, instead of doing what
it is supposed to do – working for the welfare of Florida’s condo owners.
of working on the many problems created by statutes and administrative rules
– as was the legislative intent – the Council members are trying to create
their own rules and take on tasks that only help their own personal agendas.
the draft of the minutes of the May 14 meeting in Panama City (see
below) show clearly what this is all about:
The bashing of an Office that has already helped the condo owners, much
to the displeasure of the “specialized attorneys” who are afraid their
income will decrease if the Ombudsman Office is as effective as it seems.
read these minutes and it’s pretty obvious where The Powers That Be have put
their preferences. Presentations
from the public – especially if they don’t fit in the concept of the
chairman – garner a few words in the minutes, often not even reflecting the
actual contents of the presentation. Excuse:
‘Minutes should just be the short summary of the events, not a
seems The Powers That Be consider the presentations by public speakers to be a
necessary evil – discarded with a few skimpy words in the minutes.
According to the statutes (FS 718.50151), public statements should be
the input the Council is supposed to use for recommending improvements.
I don’t think that the Council has anything to show in this regard
after four meetings.
if it comes to issues the chair has on his private agenda, you suddenly find
not only a summary in the minutes -- you find the word-for-word conversation!
I looked through the statutes – back and forward:
There is absolutely no mention that the Council is supposed to evaluate
the work of the Ombudsman and the Ombudsman Office.
the Council would at last decide to do what it is supposed to do according to
the statutes, the money spent on these meetings would finally serve a real
purpose. The work of the Council
should benefit the condo owners whose money is being used to pay the expenses
of this Council -- not serve the private agenda of some service providers.
Hopefully, the experience of this Council so far
will help the Governor, Speaker of the House and the Senate President to make
some wiser decisions when it comes to appointing new members to the Council on
October 1, 2005. Florida’s
condo owners deserve appointees who are willing to work for the welfare of
these owners, not the gain of certain service providers, who are known to
fight any reform attempts in the first place.
Advisory Council on Condominiums
14, 2005 at 9:00 a.m.
Beach Resort Conference Center
meeting was called to order at 9:00 a.m. by Chair Joe Adams.
Division Staff present:
Adams, Chair Carol
Benson, Vice Chair
Benson present via speakerphone)
of publication of public meeting notice by Carol Windham.
Melvin; Lobbyist for Cyber Citizens for Justice. Discussed the Office of the Ombudsman and was very supportive
of the functions of that office. Stated
that lack of education of officers and unit owners creates most problems.
Suggested the Division work with community colleges to offer
Smith; condominium manager. Commented
on Section 718.223(2)(a) regarding material alterations; stated that he can
not get a definition of material or substantial alteration and feels the law
should be clarified.
Pritchett; Would like to see HOAs governed by the Division.
Stated that he feels there is no recourse for owners other than court.
(Member Cochran made statement regarding the Division’s HOA Mediation
and Arbitration Program).
Scott; former condominium manager, retired.
Suggested change to Chapter 718 regarding voting by proxy.
Expressed concern that proxies that are not returned count as a
“no” vote, instead of not counting at all.
Felt that required percentages should be based on actual votes, not
membership interests. Suggested change in law regarding required 100% approval for
termination; would like to see a lower percentage. Member Dunbar commented that there has been legislation to
change to 80% vote or decision by a judge; did not pass but will be attempted
Cox; CAM, unit owner, board member from Ft Walton Beach. Stated that she does not agree with recent proposed
legislation; felt that items proposed by legislature should be in condo
documents rather than in the law – for example, requirements for owner to
live in unit 6 months of year in order to qualify to run for board.
Education should not be mandatory via the law, but in documents.
Related history of two complaints filed with Division against her
association; stated that one was a good experience but other appeared to be
Taylor; property manager. Spoke
regarding Rep. Robaina’s legislation; stated that he worked to defeat the
bill. Felt the bill gave no consideration to other than owner occupied condos,
such as resort condos in Panhandle. Also critical of proposed $2500
foreclosure rule and board term limits.
Brady; Unit owner in condominium converted from apartments. Suggested changes to law that would require rules &
regulations to be in place prior to developer transition.
Carlisle; unit owner. Stated that she agreed with fighting requirements for
unit owner occupancy in order to run for board. Posed questions regarding insurance; how to determine proper
replacement value for condominium.
Jordan; unit owner. Clarified
purpose of Council and requested that the agenda and other documents contain
the Council’s email address and other contact information.
Willie; president of association in Panama City Beach.
Asked that Council be careful regarding making any recommendations for
term limits and requirements for board members to be owner occupied. Felt it
would make difficult to get good board members in resort condos.
Sparks brought up CAI’s condominium classes and solicited comments from any
audience members who have attended courses: Geraldine Bratcher said she had
attended class several times and thought they were excellent, more should
attend. Bart Kennedy felt classes
were invaluable and also felt the discussions and interaction with others is
Franklin thought classes were great. Laurie
Smith complimented Ray Neuman of Becker Poliakoff as a CAI instructor.
She also praised Peter Dunbar’s book, “Condominium Concepts” and
stated that a copy is given to each new board member at her condo.
Honey stated that her association is having problems deciding on appropriate
reserve funding. She feels the
reserves should be increased as the condo is aging.
The majority of unit owners have voted to waive.
Suggestion from Council that unit owners could set aside private funds
to cover any future special assessments.
Member Dunbar; to approve minutes of 3/31/05 meeting as written.
by Kara Collins-Gomez, Staff Director for OPPAGA (Office for Program Policy
and Government Analysis); made presentation based on summary of her office’s
report, OPPAGA Report No. 05-24 entitled “Condominium Program
Should Process Complaints, Disputes Sooner and Enhance Program Services”.
members asked Ms. Collins-Gomez the following questions and received the
Did the report look into declaratory statements issued by the Division?
Did the report review to Office of the Ombudsman?
No, as the Ombudsman was not yet in place during the time period
covered by the review.
Will the follow up report include the Ombudsman and the declaratory
Yes, if the Council and/or the Legislature wishes.
Report stated that Division exceeds statutory timelines in cases; is
this timeline for action or closure?
Data is as stated; Legislature needs to make timelines more clear.
Does report recommend stronger enforcement action?
No, OPPAGA’s reports do not make recommendations, but instead
presents policy options. No recommendation for stronger enforcement action.
Did report review types of cases in arbitration that could have been
Does OPPAGA have an opinion as the Division’s 90 day timeline for
cases – closure vs. action?
by Colleen Donahue, Office of the Ombudsman
Donahue made brief presentation that described the Office of the Ombudsman:
stated that she is an attorney and Dr. Rizzo’s administrative assistant. She
works in Tallahassee and Dr. Rizzo is working in Fort Lauderdale.
Stated that since the office was created, they have received over 3500
phone calls, emails, and faxes.
Donahue answered questions from the Council:
Does the Ombudsman always require a written complaint, and does he acts
on phone calls?
No written complaint required. Calls
are not always complaints; there are inquiries that come in as well.
If an inquiry comes in, looking for information, does the Ombudsman
give an opinion, guidance, or a declaratory statement?
The Office does not give declaratory statements or legal opinions per
se. She or the Ombudsman would
talk to a person to come up with best avenue to resolve their problem.
Is the Ombudsman governed by the APA.
“I would imagine that he is. What do you think?”
Does the Ombudsman have a process in place regarding notifying an
association of an inquiry or complaint made by a unit owner?
Yes; not necessarily for an inquiry, but definitely for a complaint.
The Ombudsman is currently working on policy for this process.
Can you explain the process in the case of a complaint from a unit
owner against their board?
The association would be contacted, the complaint described, and an
attempt made to deal with the issue.
Concerned about due process and lack of any procedures in place for
The Ombudsman is working on a policy.
Reference made to Ms. Donahue’s previous statement that over 3500
calls, faxes, emails have been received by the Ombudsman, and that “genuine
complaints” would be referred to the Division.
Stated that she made a misstatement and withdraws the comment; she
actually meant that complaints within the Division’s jurisdiction would be
referred to the Division. Also
stated that most of the complaints received by the Ombudsman are outside the
Asked for examples of complaints that would not be within the
Could not provide, but will find out and submit this data to the
Reference made to Page 2 of Quarterly Report: A Summary of Inquiries
and Complaints: 35% regarding Board Mismanagement.
Asked if the 35% figure applies to complaints or inquires – because
there is a significant difference between the two.
Ms. Donahue will find out and provide this information to the Council.
What type of data is the Ombudsman maintaining regarding
complaints/inquires, and what procedures are being followed? The data appears
to be inconsistent within the Quarterly Report - is there empirical data that
the Council can review?
Could not provide, but will ask the Ombudsman to provide the Council
Referred to Page 5 of Report, regarding election monitoring: does
Ombudsman have established procedures regarding notifying an association of
the cost of election monitoring process?
The Ombudsman provides information on cost to each caller.
Will also ask Dr. Rizzo to provide the Council with his standard
election monitoring cost information.
Referred to Page 3 of Quarterly Report, regarding statement that the
Division’s complaint system is “bogged down with its own inefficient and
lengthy process...” ; does the Ombudsman have a position on whether 90 day
timeline is the best date for closing a complaint versus processing a
complaint? (Expressed his concern
that the focus is on a quick rather than a good resolution.)
The Council will have to ask Dr. Rizzo.
Expressed concern that Division was not contacted regarding soliciting
of information or data for the Ombudsman’s Quarterly Report, as the Division
and Department learned about report from a reporter; report was released to
media without providing to Secretary, the Division, or possibly the Governor.
Regarding data for purpose of Chapter 119 requests – where is data
Assured the Council that she has read the public records law and it is
being followed. Also stated that
some records are maintained in Tallahassee and some in Ft. Lauderdale; any
public records request should be made to the Tallahassee office and will be
Regarding statement on Page 4 of Quarterly Report: “Some CAMs have
intentionally defied and obstructed” the Ombudsman, and on Page 5 of
Quarterly Report “some association managers, directors, and their attorneys
have obstructed the election monitoring process”. Is there data to support
She will obtain data from Dr. Rizzo and provide to Council.
Referred to Page 6 of Quarterly Report regarding coalition groups that
provide education, and requested names of these groups as potential education
Ms. Donahue will provide this data to the Council.
Referred to Page 7 of Quarterly Report: Ombudsman states that
Divisions’ procedures and rules are “inefficient, ineffective, etc.”
Is there a report or analysis that forms the basis of this opinion, or
is this the Ombudsman’s personal opinion? Did he perform a study and/or
Stated that it is the opinion of the Office; she can not answer for the
Ombudsman. She will ask the
Ombudsman for this information.
How did the Ombudsman develop his proposed changes to Chapter 718, F.S.
– was there any public input?
Will ask Dr. Rizzo to provide that information to the Council.
Referred to Page 1 of Quarterly Report: statement that the Office of
the Ombudsman is the “office to oversee governance and regulation of over
18, 000 condominium associations” – where in the law is this authority
conferred upon the Ombudsman?
Did not write the report and can not answer this question, but will
find out and provide this information to the Council.
The Quarterly Report states that the office is staffed by several
volunteers; asked for the names of these volunteers.
Ms. Donahue does not know their names but will provide this information
to the Council.
Would also like an understanding of the basis upon which a government
agency appoints volunteers to discharge statutorily-mandated functions.
What kind of training do the volunteers receive?
Will have the Ombudsman respond.
Referred to the categorization of inquiries in Quarterly Report: terms
included were management abuse, board mismanagement, manager abuse, etc.
The use of these terms (abuse, mismanagement) suggests that there was
something amiss in each inquiry or complaint - where would an informational
inquiry fall in these data categories.
These might be the 10% referred to as “Inquiries”.
Referred to Page 4 of Report, which states that simple problems
regarding general mismanagement is brought to attention of an association via
an informational or instructional letter.
Where is a legislative mandate for these types of letters to be issued
by Ombudsman; isn’t it the intent of the legislature for the Ombudsman to be
Can not answer this question for the Ombudsman, but she felt the
letters are a furtherance of his duties to educate the public.
The statute mandates that Ombudsman shall make recommendations for
legislation regarding Division procedures, rules, jurisdiction and function.
The Ombudsman’s proposed revisions to 718 are regarding substantive
condominium law issues, i.e. board term limits - does not see legislative
mandate for Ombudsman to do so. Does the Ombudsman have recommendations relevant to Division
procedures, rules, function as required by statute?
Stated that when and if he does have any such recommendations, they
will be provided to the Council in writing.
Regarding the proposed election rule, asked if Ms. Donahue had any
specific suggestions regarding election rule.
What does the Ombudsman object to in the Division’s proposed rule?
Advised that the Ombudsman was still working on his draft of the rule
and would be ready in time for the May 23 hearing.
Dr. Rizzo’s draft has not yet been submitted to the Division.
Referred to Page 4 of Quarterly Report:
statement that the Ombudsman requests a board to consider the
information provided in his letter and apprise the Ombudsman as to the
Association’s plans to remedy certain issues.
In how many cases has this type of action occurred? Expressed concern
that this is duplicative of Division’s complaint process and also about the
lack of statutory authority for Ombudsman to require an association to do
anything. Would like to hear from
the Ombudsman in his statutorily required report to the Council why this is
Will ask the Ombudsman to respond.
How many complaints come from area of the state above Orlando?
Did not know, but will find out. Did
not know how data is maintained (whether by county, city or by complainant’s
Referred to Quarterly Report, which says that CAI is ineffective –
and pointed out that public input during meeting says otherwise.
Stated that she does not know anything about CAI; the report is by the
Ombudsman, she can not argue for or against.
Asked if Ms. Donahue is a member of the Florida Bar as well as an
administrative assistant, and does she responds to complaints? What
information does she record?
She is a member of the Florida Bar, and she does answer complaints.
She stated that she records general data – names, addresses, phone
numbers, name of association, name of CAM, their problem, etc.
Is this same procedure of recording information followed in
Ombudsman’s Ft Lauderdale office?
She assumes so.
Does Ms. Donahue or Dr. Rizzo provide interpretation of statute?
She does not but can not speak for Dr Rizzo.
Cochran stated that he would like record to reflect that he has concerns
regarding the operations of the Office of the Ombudsman.
9, 2005 letter from Dr. Rizzo to the Advisory Council:
Adams: Read letter from Dr. Rizzo aloud, and expressed his feeling that the
letter is disrespectful to the Council. Stated
that he is personally disappointed that the Office of the Ombudsman has chosen
to communicate with the Council in a manner such as this letter.
Also stated that he invited the Ombudsman to the January Council
meeting but never received a response. Stated
that the Ombudsman should review the statute, as it requires the Ombudsman to
provide reports to the Council, not the other way around.
Member Dunbar: Stated that letter is inaccurate, and felt it would be appropriate to respond to Dr. Rizzo to explain the activities of the Council, and again offer the opportunity for Dr. Rizzo to attend future Council meetings, so that any questions regarding coordinating the work of the Council and the Office of the Ombudsman can be discussed.
Adams will prepare response to Dr. Rizzo.
Structural deficiencies and claims of construction defect; only change to 718
passed in this session. Member Dunbar: After Governor signs this bill, how
does it interface with Chapter 558, F.S.?
Also wants to know if Council is satisfied with this bill, or does the
Council wish to discuss any concerns. Chair
Adams notes Member Dunbar’s concerns, and will revisit upon discussion of
Council’s plan of action.
565: Relates to mobile home park rent increases.
1520: Timeshare agricultural bill; exempts “travel clubs” from Timeshare
Act. Member Andrew explained effect of this bill:
people are buying condominium units, then submitting them to a
“travel club”; this bill says they are not a timeshare interest.
Will make it difficult for associations to regulate use of units; some
association documents prohibit timesharing.
Stated that neither Secretary Diane Carr nor Laura Glenn (Bureau Chief
of Standards & Registration) were aware of this amendment prior to its
passage. Member Andrew felt that
since he was employed by the Marriott Corporation, which is opposing the bill,
he would abstain from voting. Chair
Adams read aloud an email from CAI regarding its opposition to this bill.
Considered the bill a major blow to community associations and their attempt
to preserve residential communities.
MOTION: Member Sparks, to
oppose bill; Chair Adams will send letter to Governor asking that he veto this
Carries unanimously, Member Andrew abstaining.
MOTION: Member Dunbar, for
Ombudsman to consider this bill’s potential effect on individual owners’
rights and join the Council’s position.
unanimously, Member Andrew abstaining
to Section 718.5012; if 15% or 6 owners petition the ombudsman for election
monitoring. Chair Adams led brief
discussion of proposed rule. Member
Cochran: the Ombudsman originally petitioned and challenged the rule; Division
came up with new revised version from input received at December workshop.
May 23 hearing will review and take input on latest draft rule.
Adams wanted to know where the Division and ombudsman disagreed with this
rule. Member Cochran did not know, as the Ombudsman has not yet submitted his
draft for the May 23 workshop.
ensued regarding election monitoring process, including determining costs of
process, how monitors will be trained. Member
Dunbar expressed concern that how would we know petitioners have met 15%
threshold – discussion ensued regarding ways to address this issue. Member
Cochran noted the concerns and stated that he would come up with a way to
address. Chair Adams asked that
the Division take the Council’s comments into account for the proposed rule.
of the Council:
Adams recited Council’s statutory charge; led discussion regarding making a
written report to the Division and the Legislature once the Council has taken
public input. Discussion ensued regarding when the report should be prepared
MOTION: Member Andrew; to
generate written report that summarizes public testimony and conclusions
reached from Council’s study of Division and Ombudsman, submit to Division
MOTION: Member Dunbar; to
summarize public input separately from Council’s findings and present report
to Legislature in two sections.
ensued regarding timing of report; time would be needed to cover the state
with public input meetings before finalizing the report.
Member Sparks; report should be issued in December
of Division/Role of Ombudsman
Dunbar expressed desire to see the issue of clarifying the role of the
Ombudsman, procedures, in addition to reviewing the role of the Division.
Gottlieb asked if Division had “lost business” because of Ombudsman;
Member Cochran stated that he has no data to answer this question. Member of public asked if there was any way to determine
double complainants – made to Division & Ombudsman. Member Cochran stated that he does not know anything about
the Ombudsman’s tracking system to determine this data.
Dunbar expressed concern that the Ombudsman is offering assistance; Division
has standards and procedures to follow but the Ombudsman does not and is more
Dunbar also asked if the Council has the ability to take public input and make
recommendations, or can the Council make recommendations on its own?
Chair Adams stated that the Council can make recommendations on it’s
own as well. Chair Adams also
stated that the Council needs to hear from the Ombudsman too, and asked Ms.
Donahue if Council can have requested information prior to the next meeting.
Ms. Donahue stated yes. Member
Andrew stated that he reads the Ombudsman’s statutory charge to be more
passive; yet the Ombudsman seems to be operating more aggressively.
proposed changes to Chapter 718:
his suggested requirement that proposed amendments to documents be sent via
certified mail to all unit owners; Member Dunbar stated that there are unit
owners who can not receive certified mail (out of country, for example) and
that people who work during the day often can’t pick up certified mail.
Member Sparks pointed out the cost that would be involved for the
association. Member Gottlieb
stated that it was a good idea.
suggestion to take away association’s ability to waive financial reporting
would not be sensitive to smaller communities.
regarding reconstruction of condominium: Member Dunbar expressed concern that
association be held to 60 days timeline following a disaster, and the
Ombudsman’s suggestion includes requirement to hire an architect.
for unit owner inquiries, response sent via certified mail: Member Dunbar
pointed out again that not all unit owners live in the United States and are
able to receive certified mail. Discussion ensued regarding limitation on
number of unit owner inquiries. Chair
Adams stated that this limitation was put into the statute because of unit
owners disrupting operations of community in abusing requests.
Ms. Donahue stated that the Ombudsman would address this issue.
regarding “No action shall be taken” without unit owner vote; this limits
the abilities of management to operate the association.
Assessment: Add “cost & breakdown” to the notice. Member Dunbar pointed out that often meetings are held to
decide between bids for projects, so no cost would be finalized for the
Dunbar: good idea, but poorly worded.
limits and holding offices: Member
Sparks stated that term limits “throws” good officers away. Member Dunbar suggested changing to read “consecutive”
terms, otherwise would create problems for smaller communities – who would
serve on board of 4 of 5 unit communities?
force small communities to hire directors.
the right to opt out of the statutes regarding the election process: Member
Dunbar stated that this would penalize smaller communities.
Chair Adams stated that some communities opt out of statute yet
substantially comply in their documents.
owners’ right to vote on items at annual meeting: Ms. Donahue stated that
this is an avenue to get items on agenda by unit owners. Member Dunbar stated that could be a productive method for
to provide no reserves: Chair Adams asked Ms. Donahue why the Ombudsman would
make this recommendation. Ms. Donahue did not know.
Member Dunbar stated that not all communities are the same.
Expenses: Basic cable: adding the term “basic”. Chair Adams expressed concern over the differing definition
of “basic” cable, depending on the provider.
Member Dunbar stated that this could possibly eliminate the
“community” channel used by some associations to post their notices.
late fees: Eliminates application of payment to attorney’s fees first.
Discussion ensued; Member Andrew expressed concern of association’s
ability to find attorney to assist in debt collection if attorney is paid
should not be filed until after 30 days of unit owner being served.
Chair Adams stated that the idea merits further discussion; however, if
someone does not accept service then time and additional costs will accrue.
Suggested instead to state after certified mail to last known address.
Member Dunbar stated again that not every unit owner has ability to
receive certified mail, but that he likes idea of providing notice to last
no automatic renewal. Chair Adams
stated that he thought it was a good idea.
718.5012, suggested revision that “Division defer to Ombudsman’s
findings". Chair Adams expressed concern regarding due process. Member
Andrew questioned the term “expedited” and wanted to know what legislature
intended expeditious to be.
Adams asks Ms. Donahue if Ombudsman is giving legal advice to associations.
Ms. Donahaue answers no. Chair
Adams states that the immunity section of the proposed statute uses the terms
“advice” and “opinion”, and this is not included in the Ombudsman’s
statutory job description. Ms.
Donahue stated that she assumes the Ombudsman is offering legal advice.
Member Andrew stated that the Council needs clarification as to whether
the Ombud is offering legal advice or not; and if so, the Council needs to
address the liability issue involved. Asked
if it is appropriate for the Ombudsman to be offering legal advice.
will reflect the Council’s position on the Ombudsman’s suggested changes
to Chapter 718.
reviewed and approved its official website, located on the Division’s
Condominium page. Chair Adams introduced an ACC website that has been created
by Member Benson, and which is located on Member Benson’s company website.
Council members viewed Benson’s Council website.
Discussion ensued regarding appropriateness of the second website, and
regarding asking Member Benson to remove.
Member Gottlieb; to discuss with Member Benson at next meeting.
MOTION: Member Andrew; to ask
Member Benson that he immediately take down his website until the Council can
discuss at next meeting.
5-1, Member Gottlieb dissenting.
Adams states that because of the Sunshine Law implications, staff member Carol
Windham should contact Member Benson and relay this decision.
Chair Adams, that Carol Windham will call or email Member Benson,
asking him to voluntarily disable his website until next meeting, when Council
can discuss whether Member Benson should re-enable the website.
Passed 5-1, Member Gottlieb dissenting.
of website to be added as agenda item for June meeting.
Adams stated that he felt people who attend CAI classes value them but not
enough people attend. People also
really like the Division’s manuals, such as Budgets and Reserves.
Cochran stated that an interactive CD is in development now that contains all
of the Division’s educational materials available.
Dunbar suggested that the Division expanded potential providers who may have
innovative ideas; CAI has good publications list, perhaps develop the same for
the Council, with a menu of issues to help unit owner find his issue.
Cochran stated that CAI contract is up for renewal soon. Chair Adams stated
that CAI education seems to be more for board members; perhaps Division might
be able to deliver education directed at unit owners. Jerry Melvin suggested adding new questions to the website
“Frequently Asked Questions” as they come in.
meeting to be held in Miami in late June; Ms. Windham directed to poll Council
members, Dr. Rizzo, and Representative Robaina for best availability.
Ms. Windham will also ask Rep. Robaina for suggested meeting locations.
Chair Adams also requested that Ms. Windham arrange for a Spanish interpreter
for the June meeting. Agenda for
June meeting will be “loose”, to allow for a lot of public input.
adjourned at 3:15 pm, CST.