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Advisory
Council on Condominiums June
25, 2005 at 9:00 a.m. Miami
International Airport Hotel Miami,
Florida CALL TO
ORDER The
meeting was called to order at 9:00 a.m. by Chair Joe Adams. Members
present:
Division Staff present: Joe
Adams, Chair
Carol Windham Mark
Benson, Vice-Chair
Harold Hyman Mike
Andrew
Henry Carroll Mike
Cochran Peter
Dunbar George
Geisler Karen
Gottlieb Other
Attendees: Representative
Julio Robaina Dr.
Virgil Rizzo, Ombudsman Karen
Borgenhiemer, Spanish Interpreter There were
approximately 85 members of the public in the audience. PUBLIC
INPUT Dr.
Joyce Starr (submitted written document to Council): Member of board of Bona
Vida Condominium Association, 155 units. Wanted
to discuss problem of protecting condo owners’ rights; board abuses
arbitration procedures. Asked
Council to insure more effective means of protection against misconduct of board
members; abuse of fiduciary duties, misuse of condo funds; assure that board
members are accountable; abuse of DBPR arbitration procedures by associations.
Dr. Starr is involved in litigation with her association regarding pet
dispute. Nathalie
Duffau (submitted written document to Council): Unit owner at All Seasons
Hotel Condominium; 106 units. In August of 2004, after repair of water tower
above her unit, large pieces of concrete fell from her ceiling.
She determined that there were structural problems that board was aware
of; permits had been issued by the county, but no work was ever done.
Wants to force board to take appropriate repair action Gilbert
Toledo: Condominium in Kendall, 783 units.
Asked questions of the Council regarding assessments, for example, how
many assessments are allowed during one year.
Mr. Toledo also asked if assessments could be used to pay other bills and
discussed a past election recall. Raj
Prakash: Treasurer of board for
5 years in Kendall at Heron at Hammocks; 260 units.
Addressed role of Ombudsman; requested that Ombudsman be held accountable
for his actions. Dr. Rizzo asked
that the ballots for their election be sent to his office instead of the
management company. The board felt this was inappropriate and decided not to
comply. The Ombudsman then sent out
letter to all unit owners stating that the board refused to send him the ballots
and this created a clear appearance of impropriety. Felt that concept of Ombudsman is great but if office runs
unchecked it will destroy concept of unpaid mini-governments. Angela
Gonzalez; unit owner, 98 units. Stated
that she felt the function of the Council and the Ombudsman is to encourage
owners to be educated. She has
attended several CAI courses and felt they there were excellent; but thought
that they do not reach many people. Ms. Gonzalez asked that more education and
materials be provided in Spanish. Luis
Cespades: Unit owner in Windshire Condominium; 387 units.
Mr. Cespades stated that his board is made up of tyrants who do whatever
they want. Board recently applied
for 1.4 million loan to patch building (5 year loan); felt that length of loan
is outrageous and he does not know where the money goes.
A.R.
Obregon (Submitted written document to Council): Unit owner in three different communities; does not want to
give actual names. Felt that during
legislative session, the average person cannot go to lobby in Tallahassee, but
the special interests send their lobbyists.
Current laws are not efficient to protect condominium owners.
Robert
Libman (Submitted written document to Council): Unit owner at Jade Winds
Association, 916 units. Stated that
the property is not being kept up to its potential. Mr. Libman bought a new car and used a loaner from the
dealer; parked in his assigned space; got a pass since loaner had no ID.
Association told him he had to pay $5; Mr. Libman refused to pay to use
his own space and his car was then towed and damaged.
Suggested that Council come up with a rule that has some teeth regarding
board members – “once they come into power, it’s impossible to get them
out”. Valvina
Harris (through interpreter, Karen Borgenheimer): Unit owner and board
member at Grenard Park Club Condominiums; treasurer there for 5 years. Stated
that board members should first look to their condominium documents; her
association has achieved very good communication with all owners; when the board
“feels helpless” regarding the laws, they go to DBPR for guidance. Stated
that she has heard in this meeting how board members abuse their positions, but
felt that her association and board are well governed.
Unit owners and boards can make the laws work for them. Robert
Henry: Pelican Point at Villages HOA; 456 homes, President for 8 years, also
master association for 8 years. Lives
in HOA, not a condominium, but came to meeting because he felt that the laws are
going to be changed. Stated that
Rep. Robaina and Jan Bergmann only bring up bad issues, not good associations
without problems. Disagreed with 1
year term limits; felt that nothing would get done because of need to retrain
new members. Nelson
Martinez: (Submitted written document to Council) Unit owner; Mr. Martinez
stated that Division is useless. His
building had 15 violations; felt the Ombudsman is good but his office needs more
money. Mr. Martinez expressed
concerns regarding election process; felt there should be a tougher process to
ensure that unit owners are filling out ballots. In his condominium, board members filled out ballots.
Nina
Iozzi: Unit owner; 85 units. Felt
that the issue she keeps hearing about is that of buildings not being
maintained. Her building has
termites; building was tented several years ago but association did not keep up
contract. Stated that local health
departments should be involved in condominium regulation.
Mata
Geinser: Does not want to mention her condominium’s name; she is
representing a group called “Citizens for Pets in Condos”.
Described her suggestions for laws allowing for pets in condos; prosecute
unit owners who fail to clean up, tear screens, or disturb peace in other ways.
Tamaira
Perez: Miramar Gardens HOA in Dade County; 550 homes. Stated that there are 150 foreclosures in her community; she
is in foreclosure for not paying fees. She
purposely permitted herself to go into foreclosure so she could go to court over
her dispute with the association. Humberto Sanchez:
(Submitted written document to the Council)
Mr. Sanchez expressed
concern regarding Council members who represent associations.
Stated that everyone knows that there are tremendous problems except the
Division, who claim that they only receive a handful of complaints.
Spoke against predatory foreclosures – properties are sold without the
owner even being aware, no judicial process MOTION: Member Dunbar: That
submissions received from the public be attached permanently as exhibits to
minutes. SECOND:
Member Geisler VOTE:
Unanimous L.
Fields: Stated that he had questions about the recall provisions in the
Florida Administrative Code that the Council should address. For example, the rule does not state how the ballot should
handled - oral or written ballot, and does not state who will have charge of
written ballots after vote – who tallies, etc.
Ms.
Jallele: Southgrove Plaza; 43 units. Stated that educating the board does
not work. After education, the
board does whatever it wants. Stated
that the Division has not resolved her case. Hank
Cofield; Unit owner at Venetian Condominium; 340 residential units, 41
commercial units. 3 member
board, made up of 2 commercial members and 1 residential member. The association owns 7 commercial units, so the remaining 34
commercial units control the building. Counsel
for the association has advised that the documents take precedence over the
statute. Asked if his documents are superseded by statute because of their date
– they were created in 1994. Member Dunbar suggested that Mr. Cofield file a request for a
declaratory statement from the Division regarding the documents/statutes. Rosio
Sullivan: Unit owner at Castle Beach Club; 573 units. Stated that she is learning about condominium laws.
Ms. Sullivan asked who appointed the Council members; stated that she
wanted to believe that Council will be doing something.
She has met with the building inspector regarding fire hazards in her
building for over 2 years; the building has been in receivership for over a
year. No communication between agencies; different entities knew
about the problem over the years. Ms.
Sullivan stated that unit owners don’t find out about problems, fines, county
inspections. Sandra
Delgado, speaking for Lucy Marin (Submitted written document to Council):
Unit owners at Sunset Villas Phase III Condominium, 440 units.
Stated that their association started a project without sharing
information to owners; they have issues with both the quality of work and the
change in paint color, they feel the project is a material alteration which
requires approval of unit owners; there was no vote on this project.
Manuel
Blanco: Unit owner in Village of Kings Creek; 1067 units.
Felt there is a lack of enforcement by DBPR.
Stated that based on his own experience, the Division files educational
letters, warning letters, and Division ignores emails trying to get information.
Frank
Hubbell: Monarch Lakes in Miramar: an HOA; 2200 homeowners.
Craig
Garvin; Unit owner at Bay Vista Condominium; 27 units.
At last board meeting, requested mediation regarding disputed fees and
was told no. Asked if the Council
was put into place so that he could go to mediation.
Chair Adams stated that was not the purpose of this Council; however, the
law provides that the issue of fees is not subject to mediation or arbitration. Representative
Robaina requested consideration of the Council regarding the following issues:
Member
Dunbar remarked on changing the relationship between the Division, the Ombudsman
and Arbitration. Rep Robaina stated that he would like to see the Ombudsman
office moved out of DBPR and moved to Attorney General’s office; does not want
to see DBPR stating the opposite of Ombudsman. MINUTES MOTION: Member Benson; that
minutes of May 14, 2005 meeting be amended to reflect that he could not
participate in meeting via teleconference call.
Discussion
ensued; Member Dunbar asked that minutes of today’s meeting reflect that
Member Benson could not participate telephonically.
MOTION:
Member Benson; that minutes of May 14, 2005 meeting be amended to SECOND:
Member Gottlieb VOTE: Motion
failed (Chair Adams and Members Dunbar, Andrew and Geisler dissenting) MOTION: Member Dunbar; to
approve minutes with addition of Member Andrew’s name. SECOND:
Member Andrew. VOTE: Motion
carried (Members Benson and Gottlieb opposed) OMBUDSMAN Here is the written version of the presentation by Dr. Virgil Rizzo Chair
Adams introduced Dr. Virgil Rizzo and recounted the May 14, 2005 Advisory
Council meeting, where the Ombudsman’s representative Colleen Donahue
addressed some of the Council’s questions.
Dr. Rizzo
thanked the Council; stated that the Florida Legislature created the Office of
the Ombudsman and the Advisory Council; he originally wasn’t sure he wanted
the job of the Ombudsman, as he felt it was a lot of work for one person.
Dr. Rizzo
stated that the statute that created his position gave him power to address
rules; statutes might be sufficient yet rules defective; for example, recall
procedures. Stated that people say
DBPR is doing nothing – slapping wrist, information letters, etc. – these
punitive procedures are in the rules. Stated
that changing rules would be great step to solving condominium problems.
Felt his power is in economics – solve problems without spending money
on attorneys’ fees. Also stated that the Council has a lot of power in
recommending rule changes. Stated
that he has run into association boards that hire attorneys to fight against the
Ombudsman and back up the board of directors against the unit owners.
Felt that attorneys should be made to realize that they are working for
the best interest of the association, not just the boards.
Described opposing point of view of association board member who spoke
earlier (Heron at Hammocks); Stated
that Division held a workshop regarding the election monitoring rule; it was
brought up to limit the role of the election monitor.
A law firm has requested to see all petitions for election monitoring.
Felt the purpose of these actions are obstructionism.
Described
volunteer staff’s involvement; taking calls and then they review the “tough
calls” with the Ombudsman. Felt
the Ombudsman program is working. Stated
that he now has in house procedures to handle problems before they get to
mediation or become a complaint. For
example, a unit owner called the Ombudsman to say they aren’t given access to
records, so an Ombudsman Office volunteer called the president and told him to
give unit owner the records. President
then called their CAM, who stated that the Ombudsman does not have the authority
to tell him what to do. Ombudsman
told president that CAM is obstructing operations of office.
Recounted problems he has experienced with CAMs – stated that the
Office of the Ombudsman needs support everywhere and does not need to be
attacked. Dr. Rizzo
stated that his volunteers have to use phone cards to return calls to unit
owners across state, yet when he put in for reimbursement for phone cards,
Division said no. Stated that he
has not yet been reimbursed yet for his travel to Tallahassee to accept the
position of Ombudsman and considers that to be obstructionism.
Stated that every other state in the country is watching our state.
Stated that his staff person has to put together budgets, perform legal
research, make copies; she works overtime but doesn’t care because she
believes in the program. Discussed
the issue of education; stated that he has been working with local community
colleges regarding education programs. Broward
County Community College agreed to participate and create an online education
system, but wanted to know how they will get paid. Dr. Rizzo suggested charging
unit owners $20 per class. Stated that he was shocked to find out that an
education contract was awarded to CAI without letting him know about it; felt
that he could have offered part of contract to Broward County Community College.
Felt that since the statute states that Council is to recommend
suggestions for education; why Council didn’t come to him to work on this.
Stated that he will be working on content for course.
Member
Andrew stated that he has sympathy for position; not sure legislation was well
thought out. Thought legislature
dropped him into the Division without planning the ripple effect. Stated that he had a number of questions about policies and
procedures; Ms. Donahue indicated the Ombudsman would let Council know more
information regarding policies and
procedures that change daily; Dr. Rizzo stated that different situations require
different methods. Member Andrew
asked if Dr. Rizzo is a bureau chief in the Division, and therefore if the APA
and Chapter 119, F.S., all apply to the position. Dr. Rizzo answered that his
office is a work in progress; currently there is no set policy and no set
procedure and he did not know if that will ever crystallize, because he does not
have enough staff. Stated that
internal policy/internal recommendations change every day.
MOTION: Member Dunbar: that
the Council, at next meeting, devote time and effort, to an in depth dialogue to
create a framework within which the Ombudsman can work to everyone’s best
interest. SECOND:
Member Andrew VOTE:
Unanimous Chair
Adams pointed out that Council has received criticism for not taking public
input; discussion ensued and Council decided next meeting would last 2 days–
one for public input and one devoted to Ombudsman.
Chair
Adams asked that the Ombudsman review past meeting minutes and questions asked
of Ms. Donahue for next meeting. Election
Monitoring Rule Member
Cochran stated that the Division held hearing on May 23, 2005; took testimony
from Dr. Rizzo (no one else attended hearing). Stated that rules were
subsequently noticed; Joint Administrative Procedures Committee made a few
technical changes to rule, such as the form stating date and time of election.
Stated that the notice of change is now running for 21 days, and then
rule will be filed for adoption; then 21 more days until it’s adopted.
Stated that copies of noticed rule were included in each member’s
meeting materials. Member Benson
asked Dr. Rizzo if this version of the rule is acceptable; Dr. Rizzo stated that
he had not seen it. Member
Benson asked if rule is consistent with suggestions of Dr. Rizzo; Member Cochran
stated that Division took Dr Rizzo’s comments, consulted with Department, and
adopted suggestions.
Rep.
Robaina discussed changing the election monitor rule without the Division
sitting down with Dr. Rizzo to work out the Member Cochran stated that the
Division had begun to prepare the rule before the Ombudsman was appointed; after
Dr. Rizzo was appointed, the Division scrapped the process and held a hearing
for him; discussed the suggested changes and readvertised; took comments to
legal counsel and the Secretary. The
agency, after it receives public testimony, can decide whether to adopt changes
or not. MOTION: Member Dunbar: that
Carol Windham will get dates that are least unavailable for end of July and
first week of August for a 2 day meeting in Orlando. SECOND:
Member Andrew VOTE:
Unanimous
MOTION: Member Benson: that
the Council state on record to tell department to stop election rules process. SECOND:
Member Gottlieb VOTE: Motion
failed (Chair Adams and Members Dunbar, Geisler and Andrew opposed) MOTION: Member Benson; that
issues identified in his report of June 21 & 20, 2005, be added to the
agenda for consideration by the Council. SECOND:
None, motion died Discussion
ensued; Chair Adams stated that there are dozens of issues in the report; work
for next meeting is already decided upon. As
agreed in the past, agenda items should be set by motion of a Council member at
each meeting for following meeting: MOTION: Member Benson; to add
the issue of the Q&A sheet to agenda for next meeting. SECOND:
Member Gottlieb VOTE:
Unanimous Meeting
adjourned at 4:32 pm. |