SCANNED VERSION OF ORIGINAL DOCUMENT
STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA LAND
SALES, CONDOMINIUMS, AND MOBILE HOMES
IN RE: PETITION FOR ARBITRATION
MANUELBLANCO,
Petitioner,
V.
Case No. 00-1960
THE VILLAGE OF KINGS CREEK
CONDOMINIUM ASSOCIATION, INC.,
Respondent.
__________________________________/
FINAL ORDER OF DISMISSAL
Pursuant
to notice, a formal fact-finding hearing in this case was convened before
the arbitrator on March 1, 2001 by conference call with the parties and
their witnesses participating from Hollywood, Florida, and the arbitrator
presiding from Tallahassee. At the close of the petitioner's case,
the respondent moved to dismiss the petition with prejudice based on the
absence of proof to support the petitioner's claim. The motion was
granted; this final order of dismissal is accordingly entered.
Manuel Blanco (petitioner or unit owner)
filed a petition for mandatory non-binding arbitration against The Village
of Kings Creek Condominium Association, Inc. (respondent or association)
on November 27, 2000. The petition alleges that the association failed
to provide the petitioner with access to approved minutes of a unit owner
meeting held in December 1994. The petitioner has since the filing
of the petition obtained a copy of the minutes but he still seeks minimum
statutory damages pursuant to Section 718.111(12), Florida Statutes.:
On October 21, 2000, the association received
from the petitioner a written request for a copy of the approved minutes
for the annual meeting held on December 7, 1994. By letter of October
30, 2000, association manager Albert L. Dominguez responded in writing
to the petitioner:
Unfortunately the minutes seem
to have been lost. Perhaps, they
were lost during the transition of Boards and or management ...
However, I have found tapes dated in monthly order. One of the
tapes does not have a date on it but since it was placed before
January of 1995, I have reason to believe that it must be the tape
of the meeting you are requesting ... to schedule an appointment
to review the tape, please do not hesitate to call this office.
The petitioner declined the offer 'to review
the tape, insisting that he has the right to a copy of the minutes of the
meeting and that a tape recording of the meeting may not be substituted.
The association continues to assert in its answer that, at the time the
petitioner requested a copy of the minutes, the minutes could not be located
within the records of the association.
After receiving the letter, above, the
petitioner obtained a copy of the minutes from another unit owner; he declined
to drop the matter, however, contending that the association always had
the minutes and willfully refused to give him access to them. Accordingly,
a formal hearing was scheduled on the narrow issue of whether the association
had in its possession or control the minutes of the December 7, 1994 annual
meeting, and willfully failed to provide the petitioner with access to
them.
The petitioner called two witnesses, former
manager Albert L. Dominguez and Mareya Villaverde, the association's office
manager. Dominguez testified that he began working for the association
in 2000. When he received the petitioner's request for access to
the December 1994 minutes, he looked in the black books where the approved
minutes and other records are kept, but could not locate the minutes in
question. He also checked the association's computer records, and
enlisted the aid of Villaverde in the search. Villaverde served as
vice-president and secretary of the association in the past, and actually
took the minutes for the December 1994 meeting. Villaverde testified
that she and Dominguez looked everywhere for the minutes, but they were
unable to locate them. Dominguez finally checked the association's
audiotape collection, and offered Blanco what he believed was be a recording
of the December 1994 meeting. Dominguez did not listen to the tape
to confirm that it was a recording of the December meeting; the tapes are
filed by date and the tape he offered to Blanco was filed in the space
between tapes of previous and subsequent meetings.
Both Dominguez and Villaverde testified
convincingly that they made a sincere effort to search the association's
records, and did not locate the minutes that the petitioner sought.
Villaverde also testified that the association has employed several management
companies and managers since 1994; her testimony indicates that the association's
failure to maintain a copy of the minutes of a meeting held some six years
earlier is unintended. At the close of the petitioner's case, the
evidence showed that the association did not have in its possession or
control the minutes of the December 1994 annual meeting.
Section 718.111, Florida Statutes, provides in pertinent part as follows:
(12) OFFICIAL RECORDS.-
(a) From the inception of the association, the association shall maintain
each of the following items, when applicable, which shall constitute the
official
records of the association:
6. A book or books which contain the n-tinutes of all meetings of the
association, of the board of directors, and of unit owners, which minutes
shall be
retained for a period of not less than 7 years.
(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 association member
...
The failure of an association to provide the records within 10 working
days after
receipt of a written request shall create a rebuttable presumption that
the
association willfully failed to comply with this paragraph.
At the time of the petitioner's October
2000 request, the association was under an obligation to maintain minutes
of its meeting for the previous seven years, or back to October 1993.
Because the minutes were not produced within 10 days of the petitioner's
request, a rebuttable presumption arises that the association willfully
failed to provide access to them. The evidence presented by the petitioner,
however, reveals that the reason that the minutes were not produced was
because they could not be located within the association's records, probably
due to the passage of time and lax record keeping by the board.
In Brown v. Wellington L Condominium
Association, Inc., Arb. Case No. 94-0363, Final Order (February
20, 1995), the arbitrator noted that where an association fails to maintain
records, the precise violation of the statute involved is. the failure
to maintain a specific record, rather than the failure to allow inspection
of the record. The arbitrator further noted that in the ordinary
case the failure to maintain a certain record would not give rise to a
claim of money damages for failure to grant access to the non-existent
record. See also Greenlee v. Oceanside Terrace Condominium Association,
Inc., Arb. Case No. 95-0497, Final Order (March 26, 1997) (association's
failure to copy certain letters that petitioner believed existed but could
not find did not result in a violation where the petitioner did not prove
that the letters existed); Brown-Myrtil v. Oakland Forest Club Condominium
Association, Inc., Arb. Case No. 00-1039, Summary Final Order
(October 23, 2000) ("[Where] the undisputed fact is that the association
does not have the current insurance policy within its possession, and there
has been no allegation or indication that the association is intentionally
or deceptively withholding the insurance policy ... the association has
not willfully denied access to the petitioner within the meaning of the
statute.
Since the evidence shows that the association did not have in its possession
or control the minutes sought by the petitioner, the association cannot
be held to have willfully failed to provide the petitioner with access
to them. The damages provision of Section 718.111(12)(c), Florida
Statutes, applies only to a willful failure of the association to provide
access to an official record.
Based on the foregoing, it is ORDERED:
The petition is DISMISSED with prejudice, and the petitioner's claim for
damages is DENIED.
DONE AND ORDERED this 8th day of March 2001, at Tallahassee, Leon County,
Florida.
___SIGNATURE_________
Patricia A. Draper, Arbitrator
Department of Business and
Professional Regulation
Arbitration Section
1940 North Monroe Street
Tallahassee, Florida 32399-1029
RIGHT OF APPEAL
In accordance with Section 718.1255, Florida Statutes, a party adversely
affected by this final order may appeal from the order by filing, within
30 days of entry and mailing of the order, a complaint for trial de novo
with a court of competent jurisdiction within the circuit in which the
condominium is located. This order does not constitute final agency
action and is not appealable to the district courts of appeal.
ATTORNEY'S FEES
As provided by Section 718.1255, Florida Statutes, the prevailing party
in this proceeding is entitled to have the other party pay its reasonable
costs and attorney's fees. Rule 6IB-45.048, F.A.C., requires that
a party seeking an award of costs and attorney's fees must file a motion
seeking the award not later than 45 days after rendition of this final
order. The motion must be actually received by the Division within
this 45-day period and must conform to the requirements of rule 61B-45.048,
F.A.C The filing of an appeal of this order does not toll the time for
the filing of a motion seeking prevailing party costs and attorney's fees.
CERTIFICATE OF MAILING
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed
by U.S. mail, postage prepaid, to Manuel Blanco, 7915 Camino Real, Unit
N-302, Miami, FL 331 an( Jorge L. Piedra, Esq., Phillips, Eisinger, Koss,
Rothstein & Rosenfeldt, P.A., 4000 Hollywood Boulevard, Suite 265-S,
Hollywood, FL 33021 this the 8th day of March 2001.
___SIGNATURE_________
Patricia A. Draper, Arbitrator |
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