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It all started on October 21, 2000 with
a simple request by a condominium Unit Owner to his Association for the
inspection of the minutes of the December 1994 Association's annual meeting,
pursuant to the Section , FS 718.111
(12) 6 Florida Statutes. However, the Association alleged
that the minutes seem to have been lost, unavailable and do not exist.
The Unit Owner, believing that the minutes
do exist and are available and that the Association's allegations were
a pretext for denying the Unit Owner access to the requested minutes, filed
a petition for arbitration with The Department of Business and Professional
Regulation, Arbitration Section, which assigned his petition to the Arbitrator
Patricia A. Draper.
A legal battle began between the Unit Owner
and the Association's Law Firm, which apparently was given the authority
by the Association's Board of Directors to win this Arbitration no matter
the cost and the means. Despite the fact that the Unit Owner obtained a
copy of the minutes requested from a unit owner who was in the past a Board
member and proved to the Arbitrator that the minutes requested do exist
and are available and that the Association's allegation aforementioned
were just pretext to deny the Unit Owner access to them - the Arbitrator
ruled on favor of the Association. See the Arbitrator's FINAL
ORDER OF DISMISSAL dated March 8, 2001.
Not only the Arbitrator ruled on favor
of the Association despite the fact that the Unit Owner proved the existence
and availability of the minutes requested, but there are points of facts
and law that the Arbitrator Draper had "overlooked" throughout this Arbitration.
Therefore, the Unit Owner filed the PETITIONER'S
MOTION FOR REHEARING and the PETITIONER'S
ADDENDUM TO MOTION FOR REHEARING, both on March 13, 2001.
Our organization sent two
different letters to the DBPR, asking for their comments on this
arbitration case. Another letter was sent
to the Honorable Governor Jeb Bush, asking for his assistance in
clearing up this urgent matter. No responses from either party! It
seems like the agency hopes that the cases will go away if requests by
citizens asking for help are being ignored.
Please see additional documents pertaining
to this Arbitration:
NO RESPONSE
TO PETITIONER'S MOTION AND PETITIONER'S AFFIDAVIT
The Unit Owner received instead the MOTION
FOR ATTORNEY'S FEES AND COSTS from the Association's Law Firm,
which reads in pertinent part "BLANCO'S Motion for Rehearing was also denied."
Could it be possible that such allegation is meant to provide the Arbitrator
with a pretext to proceed with this Arbitration as if the Arbitrator had
indeed denied the Unit Owner's Rehearing Motion with Addendum? Could
it be possible that there is a conflict of interest between the Arbitrator,
who is also a member of the Florida Bar, with one or more of the attorneys
from the Association's Law Firm"
However, up to and including April 24,
2001 the Unit Owner has not received any response to the Motions for Rehearing.
Believe it or not, the association
attorney is actually asking for a
GRAND TOTAL
of
$ 2363.50
COMMENTS
By Jan Bergemann,
President CCFJ, INC. |
In a Court of Law - Small Claims - the case
would have been opened and closed in five minutes. Penalty: $ 500.00 in
favor of petitioner - as written in the FLORIDA
STATUTES - together with a reward for reasonable fees!
In my opinion, instead of going by the
book, the arbitrator tried to find all kind of excuses for this obvious
non-compliance and even tried to defend it.
If you read the Statutes back and forward,
the facts are clear.
The minutes of board meetings have to
be kept in writing for seven years. A copy of the minutes has to be handed
to the unit-owner 5 working days after demand in writing. Non-compliance
carries a penalty of $ 50 a day, maximum $ 500.00.
There is absolutely no paragraph in the
Statutes stating that a written copy of minutes can be substituted by listening
to a tape.
Not only has the unit-owner been denied
his rights as stated in the Florida Statutes, he is now going to be asked
to pay the above amount for denying him rights granted to him by the Florida
Legislature.
It is my understanding that the Florida
Legislature passed these Statutes to protect owners against abusive boards.
Records, as cited in the Statutes, are supposed to be open and should be
easily accessible by the unit-owners, so association business can be looked
into.
Owners
do have the right to see where their money is going!
If this ruling by the DBPR arbitrator stands,
any condo- and homeowners-association will use this excuse in the future:
Sorry, the records are not available
in the moment, seem to be lost !
The refusal of DBPR to respond to letters
regarding this issue, make it very clear to me that serving the citizen
is not on their PRIORITY LIST !
Recently our National Leaders and Legislators
have complained - see Election Disaster - that courts and judges are making
their own laws and are ruling not according to the existing law!
Here we have a case where a DBPR arbitrator
is doing exactly the same. The ruling is definitely not according to the
Statutes. But in this case the DBPR is a government department under the
direct regulation of our Legislators.
So, what does it take for our legislators
to take the necessary steps to protect the citizens from abuse by their
own departments? WE are not dealing with an independent Court in this case!
It is the obligation of our Governor
and ALL Legislators to step in and see that their own rules are
obeyed by their own departments.
If they are unwilling to see to the enforcement
of their own rules huge damage will be done towards the protection of the
citizens.
It
is about time for our Legislators to protect their Constituents! |
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