CLEAR VIOLATION OF FLORIDA STATUTES --

CAM RECEIVES LETTER OF GUIDANCE

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

Published March 29, 2010

A licensed community association manager was let off by the Department of Business and Professional Regulation with a Letter of Guidance, despite having clearly violated the Florida statutes numerous times to the detriment of many owners, who were overcharged for late fees.   

Florida statutes FS 720.3085 clearly states:

The complainant provided a well-documented complaint, adding collection procedures -- issued by the management company -- from twenty-seven (27) homeowners' associations, showing clearly that the management company was overcharging late-paying homeowners -- for its own personal gain. Not only does the management company threaten owners with outrageous fees, the company even threatens owners with filing a lien if these charges are not paid "within a short window of opportunity to pay," a procedure considered "Unlicensed Practice of Law" according to the Florida Supreme Court. The letter clearly states: "At this stage, Southwest Property Management liens the property. The cost to release the lien is $170-$200."

Considering the proof supplied by the complainant, there is in my opinion not even an argument that Spencer Solomon, president of SOUTHWEST PROPERTY MANAGEMENT OF CENTRAL FLORIDA, INC. in Winter Garden violated the Florida statutes. And the normal excuse of managers: "The board made me do it!" is not working in this case since it is highly unlikely that the board members of 27 different homeowners' associations came up with the same idea of how to violate the Florida statutes.

But attorney Thomas R. Slaten, from the law firm Larsen & Associates, P.A. in Orlando, in a letter to the DBPR dated April 23, 2009, rather attacks the reputation of the complainant instead of defending the merits of the complaint. You know the old saying: "If you can't attack the message, attack the messenger!"

The attorneys of Larsen & Associates, P.A. have anyway a reputation of inventive interpretations of the laws governing community associations. [See:  SOME CALL IT ENFORCING DEED RESTRICTIONS -- OTHERS CALL IT HIGHWAY ROBBERY!] Attorney Slaten is as well the association attorney for quite a few of the associations, where Solomon overcharged the owners. In my opinion a conflict of interest since Slaten defends a manager who overcharged owners of associations he is representing.

On Page 2 of the letter Slaten finally gets to the actual defense of the violations: "Per subsection 3(b), additional allowable charges include ‘costs and reasonable attorney's fees incurred in collection.’" 

But it's getting even better: "As noted in your analysis, the amount of any administrative late fee charged by associations managed by Mr. Solomon's company may be an issue for each association, not Mr. Solomon. Setting this aside for a moment, the fact is the $50 charge includes a $25 administrative late fee plus a $25 intent to lien charge for notifying an owner of an association's' intent to record a lien within 45 days if the overdue assessment is not paid. If still unpaid, there is an additional charge for the lien."

Here we go: it may be an issue for each association! Slaten, being in many cases as well the association attorney, defends CAM Solomon against this complaint, but remarks in his letter to the DBPR that it may actually be an issue for each association. How about an overcharged owner going after the association, as suggested by Slaten? Then he defends the association, claiming it was all Solomon's fault?

The next one coming to the defense of Spencer Solomon is Chris Brown, paid for CAM expert and former member of the Regulatory Council of Community Association Managers. In his "EXPERT OPINION" written on February 2, 2010 Brown states: "In my opinion, the review of the report and exhibits does not support a violation but the Department may want to consider an Information Letter."

Then he continues his explanation: "Regarding the claim that the $50.00 fee charged on delinquent accounts is illegal, I agree with the association's attorney that the fee is legal. Also the fee is part of the management contract and as such is a cost not a late fee as described in F.S. 720.3085(3)(a). Attorney Slaten properly explains the difference and why the $50 fee is legitimate This opinion is shared by other attorneys whom I work with."

Great logic: If others share the same opinion it has to be right!

Then Brown goes on by quoting FS 607.0830 -- General Standards for Directors: "(2) In discharging his or her duties, a director is entitled to rely on information, opinions, reports, or statements, including financial and other financial data if presented by: (b) Legal counsel, public accountants, ..."

Last I heard Solomon was a CAM -- not a member of the board of directors. And as a CAM he should be required to know the basics of Florida community association law -- and FS 720.3085 is one of the fundamental laws for homeowners' associations.

But the DBPR -- CAM Regulation -- obviously allowed all these excuses to be valid. Because all CAM Spencer Solomon received was a Letter of Guidance, admonishing him "to study the proper roles and duties of a Community Association Manager. Additionally, you must refrain from referring to the $50.00 charge as a late fee."

In other words: Call it a different name and you can charge it?

I often wonder why we have statutes in the first place, if the people we pay with our tax dollars to enforce these laws are allowed to change the meaning of these laws if it fits their agenda. It's no wonder why the State of Florida is in such bad shape. So-called professionals are allowed to fleece the homeowners and the folks that are supposed to uphold the laws are rather finding excuses for the so-called professionals who violate these laws.

But even these people are called PROFESSIONALS in FLORI-DUH!