STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

IN RE: PETITION FOR ARBITRATION

Ramsey Agan and Grace Agan,

Petitioners,

v. Case No. 2003-09-2374

Plaza East Association, Inc.,

Respondent.

____________________________________/

SUMMARY FINAL ORDER

This final order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which requires the arbitrator to enter a summary order where there are no disputed issues of material fact.

FINDINGS OF FACT

On November 11, 2003, Ramsey Agan and Grace Agan (petitioners) filed a petition for arbitration naming Plaza East Association, Inc. as respondent/association. The petition alleges that the association failed, upon written request, to provide the petitioners timely access to association records, in violation of § 718.111(12), Florida Statutes. The association filed its answer to the petition on December 12, 2003. In its answer the association does not deny that it failed to provide access to the records within the time frame required by § 718.111(12), Florida Statutes, but asserted various affirmative defenses arguing why compliance should not be required.

Prior and subsequent to the filing of the petition for arbitration, the petitioners and association have been involved in litigation by which the association sued the petitioners for alleged failure to fully and timely pay their condominium association maintenance assessments. During this litigation the petitioners on two occasions, May 30, 2003 and July 16, 2003, through discovery requested the historical ledgers for the petitioner’s unit from December 1999 through present, and from November 1999 through present.

The association’s unit owner ledgers prior to 2001 are maintained on the association’s computer in computer programs no longer used by the association. The association’s bookkeeper, Patricia Gibson, is the only person with daily contact with the association who knew how to access the archived files. In October 2002, Ms. Gibson took a leave of absence and subsequently passed away in April or May 2003. Other than Ms. Gibson, the only person who knew how to access the archived files was the association’s accountant.

On October 1, 2003, the association served its response to both requests for production in the circuit court case, providing the petitioners’ unit ledger from January 1, 2001 to the present and indicating that the older ledgers will be produced. The association’s counsel spoke by telephone to the petitioners’ counsel on October 2, 2003, informing him that the ledger’s prior to 2001 were maintained by the accountant for the association and that it would take some time to obtain the older unit owner ledgers.

On October 27, 2003, the association received the petitioners’ official records request pursuant to § 718.111(12), Florida Statutes, for the petitioners’ unit owner ledger from December 1999 to the present. The petitioners’ attorney sent the association’s attorney a letter on November 5, 2003, indicating that they had not received a response to their records request. On November 10, 2003, the association’s attorney by letter again informed the petitioners’ attorney of the difficulties in obtaining the requested records.

The association was not able to schedule an appointment until November 19, 2003 for the association’s accountant to access the association’s archived files. On November 20, 2003, the association’s accountant provided the association with copies of the petitioners’ unit ledgers from 1999 to 2000, and they were subsequently made available to the petitioners.

CONCLUSIONS OF LAW

It is not disputed that the petitioners requested in writing that the association make available the petitioners’ unit ledgers for various times.

Section 718.111(12)(a), Florida Statutes, provides, in pertinent part:

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… Accounting records for the association and separate accounting records for each condominium which the association operates. All accounting records shall be maintained for a period of not less than 7 years. The accounting records shall include… a current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid upon the account, and the balance due.

Thus, the petitioners’ unit owner ledgers are official records that the association is required to maintain and produce for inspection. Section 718.111(12)(b) provides:

The official records of the association shall be maintained within the state. The records of the association shall be made available to a unit owner within 5 working days after receipt of written request by the board or its designee. This paragraph may be complied with by having a copy of the official records of the association available for inspection or copying on the condominium property or association property.

The association does not deny that on October 27, 2003, it received a written request for official records from the petitioners’ attorney requesting the petitioners’ unit ledger from December 1999 through the present. Additionally, the association has admitted that it did not provide the requested records until at least November 20, 2003. Thus, the association failed to provide the requested official records within five working days after receipt of the request and, therefore, violated § 718.111(12)(b), Florida Statutes.

The association raised several defenses in response to the petition. The association argues that failure to produce the requested records was not willful, noting that the respondent undertook efforts to make the requested records available to the petitioners despite the fact that the records were in a format that no one employed by the respondent on a daily basis had knowledge how to access. This defense fails for the following reasons. The records requested by the petitioners are of the type the association is specifically required to maintain and provide access to pursuant to § 718.111(12), Florida Statutes. When the association responded to the May 30^th 2003, discovery request, it was placed on notice that it could not access certain official records and failed to remedy the problem for months. Where the association has direct knowledge that a record it is statutorily required to maintain is deficient and over a period of time fails to correct the deficiency, the association has willfully failed to provide access to the record within the meaning of § 718.111(12), Florida Statutes. Warren v. Springwood Village Condo. Assn. Of Longwood, Inc., Arb. Case Nos. 00-0177 and 00-2153, Final Arbitration Order on Rehearing (August 28, 2001).

Section 718.111(12)(c), Florida Statutes, addresses willful failure by an association to make available official records. It provides in pertinent part:

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. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply with this paragraph. The minimum damages shall be $50 per calendar day up to 10 days, the calculation to begin on the 11th working day after receipt of the written request….

Based on the foregoing, it is apparent that association failed to provide the requested records within ten (10) working days. Accordingly, the association’s failure to provide the records was willful and the petitioners’ are entitled to damages of $50.00 per calendar up to 10 days, beginning on the 11^th working day after receipt of the written request by the association. Therefore, the association is entitled to ten days of damages at the rate of $50.00 per day.

The association claims that the records were in a format that no association employee knew how to access and that only the association’s accountant, who was apparently not readily available, knew how to access. To allow such a circumstance as a defense would allow associations to avoid compliance with the statutory access requirements simply by maintaining the records in a cryptic, ill-considered format. Additionally, it is not a adequate defense to the requirement to make the records available that some of them are in the custody of the association’s accountant. See Amsel v. Condo. Assn. Of Gateway House Apartments, Arb. Case No. 2003-04-2792, Summary Final Order (July 24, 2003).

The association also asserts that the petitioners were not denied access to the requested records because at all times during the request process the association’s computer was available for inspection, if the petitioner’s counsel thought he could access the files. Requiring an unit owner or his representative to hack into the association’s computer or to otherwise figure out how to operate the association’s computer or programs in order to obtain requested official records most certainly does not make the records available within the meaning of § 718.111(12), Florida Statutes.

The association also notes that most of the ledger information was provided as part of the petitioners’ discovery request in the civil court case only days before they made the official records request pursuant to § 718.111(12), Florida Statutes. However, the association failed to provide all the records the petitioners requested in a timely manner. Additionally, § 718.111(12), Florida Statutes, does not prohibit unit owners from requesting records that they already possess.[1] See Kilgore et al. v. Ciega Verde Unit Owners Assn., Inc., Arb. Case No. 00-0747, Summary Final Order, (July 3, 2000)(absent a rule limiting access to official association records, an association may not refuse access to its records on the ground that unit owner has already seen the records once before).

The association contends that when the petitioners realized that the association could not provide the requested official records in their entirety within the statutorily required time, the petitioners decided to make the statutory request in order to exact minimum damages and attorney’s fees from the respondent and should not be permitted to do so. The petitioners’ intent in making an official records request does not alleviate the association’s duty to comply with § 718.111(12), Florida Statutes. See Alan v. Boca Cove Home Condo. Assn., Inc., Arb. Case No. 92-0263, Partial Summary Final Order (March 22, 1993)(statute does not impose good faith requirement where owner seeks to obtain access to official records), also see, Silva-Fernandez v. Arlen House West Condo. Assn., Inc., Arb. Case No. 00-0130, Summary Final Order (June 7, 2000)(fact that unit owner’s requests for official records are allegedly made to harass the association, and are made frequently does not state a legally adequate defense or rebut the presumption of willfulness).

Finally, the association argues that the petitioners are attempting to utilize § 718.111(12), Florida Statutes, as a method to avoid the requirements of Florida Rules of Civil Procedure. Section 718.111(12), Florida Statutes, and the Florida Rules of Civil Procedure are independent of one another. Thus, civil court litigation between petitioners and association does not prevent the petitioners from seeking official records pursuant to § 718.111(12), instead of the discovery methods outlined by the Rules of Civil Procedure, or they may use both methods. See Malone v. Pebble Springs Condo. Assn., Inc., Arb. Case No. 00-0558, Final Order (October 9, 2000)(access to official records cannot be refused on the ground that the information to be accessed, or any part of it, is available by other means).

Based on these findings, the arbitrator concludes that the association willfully failed to make available official records requested by the petitioners violated §718.111(12), Florida Statutes, by failing to provide the records within ten working days of receipt of the petitioners’ written request. The association did not provide all the requested records until at least twenty-four (24) calendar days after receipt of the request. The defenses raised by the association do not justify the association’s failure to make the records available and do not overcome the presumption that such failure was willful. Accordingly, the relief requested by the petitioner is granted.

It is therefore ORDERED:

The relief requested by the petitioner is hereby GRANTED. The association, if it has not already done so, shall make available all the official records requested by the petitioners and shall at all times in the future make available official records requested by the petitioners in accordance with § 718.111(12), Florida Statutes. The association shall pay the petitioners, Ramsey Agan and Grace Agan, $500.00 as damages for its willful failure to make available the requested records pursuant to § 718.111(12), Florida Statutes.

DONE AND ORDERED this 20^th day of January 2004, at Tallahassee, Leon County, Florida.

_________________________________

James W. Earl, Arbitrator

Department of Business and

Professional Regulation

Arbitration Section

1940 North Monroe Street

Tallahassee, Florida 32399-1029

Right to Appeal

As provided by section 718.1255, F.S., a party which is adversely affected by this final order may appeal by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. 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, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney’s fees. Rule 61B-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 Service

I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 20^th day of January 2004:

F. Blane Carneal, Esq.

F. Blane Carneal, P.A.

Post Office Box 030129

Fort Lauderdale, Florida 33303

Mark M. Heinish, Esq.

Katzman & Korr, P.A.

5581 W. Oakland Park Boulevard

2^nd Floor

Lauderhill, Florida 33313

_________________________________

James W. Earl, Arbitrator

[1]§ 718.111(12)(c), Florida Statutes, permits the association to adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The association has not indicated that it has adopted any rules regarding access to its official records.