No charges in HOA dispute

Article Courtesy of The Ocala Star Banner

By Richard Anguiano

Published April 1, 2015


Expect no criminal charges in the case of an Ocala property management firm being investigated by the state over allegations it spent homeowners association money in violation of state law and improperly conducted association meetings.

Assistant State Attorney Mark Simpson said members of a homeowners’ coalition whose members filed complaints with the state against Property Management Consultants Inc. and its principals had their best opportunity to pursue criminal charges in the matter several years ago.

The Department of Business and Professional Regulation recently issued a final order adopting a “settlement stipulation” in the case signed by agency officials and the attorney for the defendants, who include Property Management Consultants Inc., Deborah Herren and S. Wesley Herren.

The final order documents, signed by Deborah Herren; Russell W. LaPeer, the attorney representing PMC and the Herrens; and Joshua Kendrick, assistant general counsel, on behalf of DBPR, center on:

An allegation that after John Zacco, developer of Hardwood Trails, paid, under court order, $17,350 in property association fees and assessments to be allowed to vote in the association’s annual meeting in 2009, Wesley Herren wrote Zacco’s company, JP & Sons Development Co. LLC, a check for that precise amount from the Hardwood Trails Property Owners Association.

Allegations that Deborah Herren and Wesley Herren each conducted Heath Brook Hills Home Owners Association meetings in violation of association bylaws; that PMC failed to hold elections for the board of directors in 2014; and that Deborah Herren denied an association member’s request to adjourn a meeting in November 2013 due to lack of a quorum.

Simpson said it is simply not the State Attorney’s Office’s place to pursue this matter.

“We prosecute criminal violations, but civil disputes between parties we don’t,” Simpson said. “A lot of this may be wrong, it may be illegal, but it’s not criminal.”

Don Kronen and Yvonne Gordon, members of the Homeowners Association Coalition, disagree. Kronen, who has battled Zacco in court for years over a home he bought in Hardwood Trails, called the matter concerning the developer’s court-ordered payment of $17,350 “felony theft.”

“God forbid you should wheel a cart out the front of Wal-Mart. The cops will be on you like that,” Kronen said, snapping his fingers. “But Zacco, Herren? Pass.

“Felony theft is felony theft,” he said. “You steal money. It’s gone. They proved it. Somebody should pay the price.”

Zacco has not responded to the Star-Banner’s request for a comment.

Despite words in the DBPR document like “final order” and “settlement stipulation,” LaPeer, the attorney representing PMC and the Herrens, said “it is inaccurate to say there is a settlement.”

“There is a proposal pending and therefore I don’t discuss things until it is final and conclusive,” LaPeer said in a voicemail left with the Star-Banner late last week.

“When it is conclusive, I will be glad to sit down and talk with you at length and to deal with all of the inaccuracies and the baloney that people put out,” he said in the voicemail.

Under the two final orders accepting settlement stipulation, Deborah Herren and PMC are to pay two fines of $2,000, plus costs of $485.32 and $639.05.

Herren is also to complete 15 hours of continuing education and both hers and PMC’s community association manager, or CAM, licenses are to be put on probation for six months. Wesley Herren voluntarily relinquished his CAM license in 2013.

The settlement stipulation also holds that DBPR “properly served” PMC and the Herrens with the administrative complaints charging violations of Florida Statutes, but that the Herrens “neither admit nor deny the material facts as alleged.”

Deborah Herren, LaPeer and Kendrick also signed a document agreeing to publicly dismiss eight other complaints filed with the state agency. The DBPR indicated by email that two complaints concerning Michelle Santana, a community association manager with PMC, have also been dismissed, though coalition members say they want the cases against her reopened.

Gordon, who owns property in Magnolias at Ocala and sits on that community’s homeowners association board, described the sanctions against PMC and the Herrens in the final order documents as “embarrassing, really.”

“I’m thinking DBPR is that powerless if that’s all they can do if someone violates their statutes,” Gordon said. “I don’t understand the point of a DBPR. Why even go through getting licensed if you can just get away with stuff like this? What can happen? You can continue to run your business as usual. No accountability. A slap on the wrist.”

Gordon and Kronen said coalition members spent much time and effort documenting cases for the DBPR.

“Which is why when they quash our cases, it’s offensive to us because we’ve put in all this time into it and gathered all the evidence and they just dismiss it,” she said. “People generally won’t do it because it’s too much time and effort.”

Simpson said in the matter of Hardwood Trails and Zacco’s $17,350 payment that he urged Kronen and other community residents to take action that could have resulted in criminal charges. He said he advised them to go back before Judge John Futch, who had ordered Zacco to pay the $17,350 in the first place.

“My words to Mr. Kronen and the rest were, ‘Guys, you’re already here. Go get the judge to (enforce the court’s order),’ ” Simpson said. “Plus the judge can hold him in contempt. That means he can put him in jail.’ ”

Kronen said he filed a contempt of court order.

“I waited and waited,” he recalled. “Must have been four or five months. Finally I phone his office and said, ‘Is there any movement?’ After a couple of days I get a thing back, he denied my contempt order. He had some cockamamie thing like I titled it wrong and there was too much time. There’s no time limit on contempt.

“I may redo it because now we’ve got (the DBPR final orders),” Kronen said.

Simpson says many of the coalition’s complaints are several years old and may be beyond the statute of limitations. Kronen, meanwhile, accuses Simpson of having “put the kibosh” on his group’s attempts to get justice.

“That would be a fair statement, yes,” Simpson said. “I feel I have the right to do that because I’ve listened to this stuff. I sat down and went through, line by line, each one of his allegations and said, ‘Look, even if I accept everything you say as true down to the last detail, it still doesn’t rise to the level of being a crime. Period. End of story.’ They don’t want to hear that.

“We’ve been through this so many times now, that I’m tired of it,” he added. “I’m literally physically tired of it. We have given them audience 100 times. We’ve given them the same answer and they just refuse to accept it. That’s OK, they can, but at some point in time, you’ve got to stop beating your head against the wall. I guess they haven’t gotten there yet.”

Gordon and Kronen advise homeowners to get involved in their associations.

“If you do have a complaint, contact the DBPR,” Gordon said. “Be more aware of your governing documents. Read your documents and make sure your management company is complying with them.”

“Get the financial reports and look at them very carefully,” Kronen said. “See where the money is going.”