April 28, 2009 VIA
CERTIFIED MAIL RETURN RECEIPT REQUESTED Certified
Number: 7006 1490 0001 1570 3214 Ashby D Condominium Association, Incorporated C/o:
Condo Org. of Century Village East, Inc., Registered Agent RE: Ashby D Condominium Association, Incorporated Case Number: 2008016620 Dear Registered Agent and Members of the Board of Directors: The Division of Florida Condominiums, Timeshares and Mobile Homes is the State agency charged with the administration of chapter 718, Florida Statutes (the Condominium Act) and the related administrative rules set forth in chapters 61B-15 through 61B-24, Florida Administrative Code related to developer, access to records, elections and financial issues. The Division has received a complaint regarding Ashby D Condominium Association, Incorporated. Complaints received by the Division are investigated pursuant to resolution guidelines set forth in chapter 61B-21, Florida Administrative Code. Depending on the seriousness or gravity of the alleged misconduct, the Division’s response may be in the form of information provided to the Association to correct the misconduct, a warning letter which demands a response from the Association meeting our approval or an enforcement action by the Division. The complaint filed against your Association alleges that seven violations as defined by the law may have occurred. In this instance, based on our review of the evidence, we believe that two violations can be resolved through a warning letter, and that five violations can be addressed by providing an informational resolution. The
Division, pursuant to rule 61B-21.002(4),
Rule 61B-23.0032(7), Florida Administrative Code, states: “Upon
the timely request of a candidate as set forth in this paragraph, the
association shall include, with the second notice of election described in
subsection (8) below, a copy of an information sheet which may describe
the candidate's background, education, and qualifications as well as other
factors deemed relevant by the candidate. The information contained
therein shall not exceed one side of the sheet which shall be no larger
than 8 1/2 inches by 11 inches. Any candidate desiring the association to
mail or personally deliver copies of an information sheet to the eligible
voters must furnish the information sheet to the association not less than
35 days before the election. If two or more candidates consent in writing,
the association may consolidate into a single side of a page the candidate
information sheets submitted by those candidates. The failure of an association to
mail, transmit or personally deliver a copy of a timely delivered
information sheet of each eligible candidate to the eligible voters shall
require the association to mail, transmit, or deliver an amended second
notice, which shall explain the need for the amended notice and include
the information within the time required by this rule. If an amended
second notice cannot be timely mailed, transmitted or delivered, the
association must re-notice and reschedule the election. If the election
has already been conducted, the association shall conduct a new election.
No association shall edit, alter, or otherwise modify the content of the
information sheet. The original copy provided by the candidate shall
become part of the official records of the association.” To
comply with the
Section
718.111(13), Florida Statutes, states in relevant part: “(w)ithin 90
days after the end
of the fiscal year, or annually on a date provided in the bylaws, the
association shall prepare and complete, or contract for the preparation
and completion of, a financial report for the preceding fiscal year.
Within 21 days after the final financial report is completed by the
association or received from the third party, but not later than 120 days
after the end of the fiscal year or other date as provided in the bylaws,
the association shall mail to each unit owner at the address last
furnished to the association by the unit owner, or hand deliver to each
unit owner, a copy of the financial report or a notice that a copy of the
financial report will be mailed or hand delivered to the unit owner,
without charge, upon receipt of a written request from the unit owner.” The Division requires the Association to demonstrate its intention to comply with the statutory requirements of the Condominium Act by either mailing or hand delivering copies of the 2007 year end financial statements, or a notice of the availability of 2007 year end financial statements to the unit owner at no cost upon receipt of a written request, to each Association member. Further, to evidence the completion of this action the Association must provide the Division no later than May 14 2009 a notarized affidavit of delivery signed by the person delivering the financial statements or of the notices in lieu of the actual statements. In the alternative, you may dispute the violation. If you choose to dispute the violation, you must submit clear and convincing evidentiary documentation to demonstrate that the violation did not occur. Please note that if the Association fails to respond to this letter, or if another complaint is received alleging repeated violations of the same nature, the Division may pursue enforcement resolution, which may result in civil penalties of up to $5000.00 per violation. The
Division, pursuant to rule 61B-21.002(2),
Section 718.112(2)(3)2.a., Florida Statues, states, “If a board adopts in any fiscal year an annual budget which requires assessments against unit owners which exceed 115 percent of assessments for the preceding fiscal year, the board shall conduct a special meeting of the unit owners to consider a substitute budget if the board receives, within 21 days after adoption of the annual budget, a written request for a special meeting from at least 10 percent of all voting interests. The special meeting shall be conducted within 60 days after adoption of the annual budget. At least 14 days prior to such special meeting, the board shall hand deliver to each unit owner, or mail to each unit owner at the address last furnished to the association, a notice of the meeting. An officer or manager of the association, or other person providing notice of such meeting shall execute an affidavit evidencing compliance with this notice requirement, and such affidavit shall be filed among the official records of the association. Unit owners may consider and adopt a substitute budget at the special meeting. A substitute budget is adopted if approved by a majority of all voting interests unless the bylaws require adoption by a greater percentage of voting interests. If there is not a quorum at the special meeting or a substitute budget is not adopted, the annual budget previously adopted by the board shall take effect as scheduled.” 4.
The Association, in violation of
section 718.112(2)(e), Florida Statutes, failed
to
deliver notices of the proposed budget meetings for fiscal years
2007 and 2008.
5. The Association, in
violation of section 718.112(2)(e), Florida Statutes, failed
to provide copies of the proposed 2007 and 2008 proposed budgets to
the
unit owners.
6. The Association, in
violation of section 718.112(2)(e), Florida Statutes, failed to maintain
for fiscal years 2007 and 2008. 7.
The Association, in violation of
section 718.112(2)(e), Florida Statutes, failed to
conduct a meeting to consider an alternate budget upon receipt of a petition from 10 percent of the unit
owners following the adoption of a budget
exceeding 115% of the previous year’s annual budget. Section 718.112(2)(e), Florida Statues, states, “Any meeting at which a proposed annual budget of an association will be considered by the board or unit owners shall be open to all unit owners. At least 14 days prior to such a meeting, the board shall hand deliver to each unit owner, mail to each unit owner at the address last furnished to the association by the unit owner, or electronically transmit to the location furnished by the unit owner for that purpose a notice of such meeting and a copy of the proposed annual budget. An officer or manager of the association, or other person providing notice of such meeting, shall execute an affidavit evidencing compliance with such notice requirement, and such affidavit shall be filed among the official records of the association… …2.a. If
a board adopts in any fiscal year an annual budget which requires assessments
against unit owners which exceed 115 percent of assessments for the
preceding fiscal year, the board shall conduct a special meeting of the
unit owners to consider a substitute budget if the board receives, within
21 days after adoption of the annual budget, a written request for a
special meeting from at least 10 percent of all voting interests. The
special meeting shall be conducted within 60 days after adoption of the
annual budget. At least 14 days prior to such special meeting, the board
shall hand deliver to each unit owner, or mail to each unit owner at the
address last furnished to the association, a notice of the meeting. An
officer or manager of the association, or other person providing notice of
such meeting shall execute an affidavit evidencing compliance with this
notice requirement, and such affidavit shall be filed among the official
records of the association. Unit owners may consider and adopt a
substitute budget at the special meeting. A substitute budget is adopted
if approved by a majority of all voting interests unless the bylaws
require adoption by a greater percentage of voting interests. If there is
not a quorum at the special meeting or a substitute budget is not adopted,
the annual budget previously adopted by the board shall take effect as
scheduled.” The
Division hopes that the above information is useful to your Association.
You may contact our office should you have any questions regarding the
issue discussed. Repeated violations of a similar nature may result in
further action by this agency. Please allow this letter to also serve as a
reference to future members of the Board. Please
forward the Association’s response and required information to my
attention at the following address no later than May
7, 2009 (election only) and May 14, 2009 to: DEPARTMENT OF BUSINESS AND PROFESSIONAL
REGULATION BUREAU OF COMPLIANCE Attn:
Investigator Hague If
you should have any questions about this letter or how to comply with any
of the statutes or rules cited above, please contact me at (954) 202-3982,
Extension #225 to arrange for educational assistance or an educational
conference. YOUR
ATTENTION IS DIRECTED TO RULE 61B-23.002(7)(B)1., Sincerely,
BUREAU OF
COMPLIANCE
[SIGNATURE] HARRY R. HAGUE, M.A., C.I. Investigator II HRH/ Copy to: Marc Soskow 4027 Ashby D
Joe Sachs, President Ashby D Condominium Association, Inc. 1022 Ashby D
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