MEETING June 25, 2005

Advisory Council on Condominiums

June 25, 2005 at 9:00 a.m.

Miami International Airport Hotel

Miami, Florida


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.


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.  Stated that HOAs share lot of same problems as condos; specifically, the board and management companies.  Stated that many homeowners are unhappy with management company and the same president as when board was first formed (5 yrs).   Mr. Hubbell reported violations to management company; nothing happened because board told him that they were forming violations committee.  Stated that no homeowner was notified about election of board. 

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:

  • Condominium conversions; new laws that govern local municipalities regarding inspections – firewalls, building codes, and how the developer turns conversion over to new board
  • Regulation of property management companies
  • The Office of the Ombudsman; asked for a way to clarify his duties and give the Ombudsman additional responsibilities and teeth; would also like to see cooperation with DBPR
  • Give the Division power to fine people
  • Unit owners need more mediation; felt mediation is not popular with law firms but a better way to resolve problems
  • Satellite office in Ft Lauderdale for the Ombudsman
  • Recommendations for emergency evacuation procedures for condominiums
  • Conflicts of board members doing business with family members
  • Recalls; boards and/or law firms that try to block recalls
  • Possible conflict of interest between DBPR employees and law firms
  • Education; CAI provides a good product; but asked Council to find alternatives
  • Support for pilot program with state attorneys for pursuing criminal condominium cases
  • Better regulation of CAMs
  • Sovereign immunity of board members; no immunity if someone maliciously uses their power
  • Foreclosures; asked Council for suggestions regarding predatory foreclosures
  • Law firms that protect boards and harass unit owners
  • Asked that members not allow their positions to carry out personal agendas. Said, in response to question from Chair Adams, that he has seen no evidence of personal agendas on the Council.

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.


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 remove the question and answer sessions regarding OPPAGA and the Office of the Ombudsman.

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)


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. 

Chair Adams stated that the Council did not understand Dr. Rizzo’s exact concerns regarding the rule, as Ms. Donahue was unable to articulate his position regarding the rule at the last meeting.  Asked Dr. Rizzo to explain his suggested changes to the Council.  Dr. Rizzo stated that he did not have his suggestions for the rule in front of him and would be unable to comment.  Chair Adams asked that Dr. Rizzo come to next meeting prepared to discuss specifics.

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.