Posted May 9, 2005

The Office of the Condominium Ombudsman was created by the 2004 Legislature and codified under Chapter 718.5011 of the Florida Statutes (The Ombudsman Statute). The purpose of the Office is to provide education and assistance to condominium owners, to act as a liaison between the owners and their managers and directors, to resolve complaints, and to facilitate voluntary resolution of disputes. The Office is mandated to assist, monitor, conduct, and review condominium elections and meetings. The Ombudsman is required to make reports and legislative recommendations relative to the Division of Condominiums’ rules, procedures, jurisdiction, personnel, and functions. The Office is to oversee the governance and regulation of over 18,000 condominium associations, consisting of approximately 1.1 million condominium units.

The principal Office of the Ombudsman is located in Tallahassee and housed within the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation. The Division of Florida Land Sales, Condominiums, and Mobile Homes Trust Fund finances the functions of the Office.

The Ombudsman, an administrative assistant, and several volunteers currently staff the Office. The volunteers work at their maximum productivity levels and have honed their procedures to offer a specialized, efficient and valuable service.

The Tallahassee Office has a full-time administrative assistant who is also a member of the Florida Bar. Besides coordinating the operation of the Office’s administrative affairs, she attempts to interact with the Division of Condominiums for access and use of their files and records, as instructed by the Ombudsman pursuant to Section 718.5012(1), Florida Statutes.

Because of the demand for a liaison, election monitor, mediator, Office coordinator and representative in Southeast Florida, the Ombudsman himself operates in that area of Fort Lauderdale. It is anticipated that a satellite Office will be established there with the concurrence of the Governor and if the upcoming budget permits. Budgetary constraints prohibit frequent travel from Tallahassee and Fort Lauderdale to all other areas of the state that command the Ombudsman’s presence.

Governor Jeb Bush appointed the Ombudsman, Dr. Virgil Rizzo, early in December 2004. The Office began functioning shortly thereafter, and by January 2005 it was receiving calls, mail and emails from numerous condominium owners. Currently the Office handles over 400 inquiries a week. Most of the inquiries and requests for assistance and election monitoring originate in Broward, Palm Beach, and Miami-Dade counties. Most of the inquiries and requests are dealt with by telephone and email replies. Approximately 75% of the issues, disputes, complaints, and problems are resolved by communication, information, and assistance within a day or two of their receipt.

During the first quarter of its existence the Ombudsman’s Office received a total of 3,556 inquiries. From inception, the complaints and requests were separated and logged into different categories and subcategories. Many categories overlapped and most involve an aspect of education, information and procedural assistance.

About thirty-five percent (35%) of complaints were about Board of Director Mismanagement regarding finances, general operation, maintenance, and assessments. Twenty percent (20%) of the complaints related to Officer and Director Abuse during meetings, about records, by selective rule enforcement, lease-sale-transfer refusal, and general harassment. Ten percent (10%) were complaints regarding similar Abuse By Community Association Managers (CAMs) and condominium management companies. Twenty percent (20%) of the inquiries concerned Rule Violations. Fifteen percent (15%) related to Election and Recall situations and issues.

SUMMARY OF MAJOR CATEGORIES OF INQUIRIES AND COMPLAINTS

	BOARD MISMANAGEMENT (General and Fiscal)	35%
	OFFICER AND DIRECTOR ABUSE (Harassment, Rules, Records)	20%
	· RULE VIOLATIONS (Enforcement, Lack of Enforcement)	20%
	ELECTION PROBLEMS AND RECALL	15%
	MANAGER (CAM) AND MANAGEMENT COMPANY ABUSE	10%

The Ombudsman’s Office resolves seventy-five percent (75%) of the cases it handles.
The exceptionally high performance ratio of success per contact is achieved by its innovative RESPONSE-INTERVENTION-RESOLUTION procedural approach. The three-phase system consists of the following:

1. Response: Over 90% of the inquiries and complaints (telephone calls, emails, faxes, and mail) that come to the Office are answered within 24 hours. About 10% are informational and can be resolved immediately.

2. Intervention: A member of the staff will endeavor to contact all sides of the issue. This may include unit owners, board members, officers, property managers, and attorneys. The Office will then evaluate the situation and decide what action should be taken.

3. Resolution: By opening the channels of communication between the parties, most disputes can be settled or referred to an appropriate state agency within a few days.

This approach offers the much-needed effective outlet that the State recognized as a priority when it created the Office of the Ombudsman. Before the establishment of the Ombudsman’s Office, no mechanism existed for a person with a condominium problem to obtain action other than the court system or the Department of Business and Professional Regulation’s Division of Condominiums (Division). The use of the overcrowded court system to resolve a dispute is a lengthy and costly matter. The Division’s complaint system is bogged down in its own inefficient and ineffective lengthy procedural problems that have recently been exposed in the April 2005 report of the State Office of Program Policy Analysis & Government Accountability (OPPAGA).

The Ombudsman’s Office and its Response-Intervention-Resolution approach puts it in the unique position of being able to resolve disputes amongst board members or other unit owners that are not addressed by or do not fall within the guidelines of the jurisdiction of the DBPR. The Division does not handle bylaw problems, rule and regulation issues, issues concerning parking, contractual disputes, discrimination, maintenance, common elements, material alterations, violations of condominium documents, and questions about parliamentary procedure. The statutory powers and duties of the Ombudsman’s Office allow it to effectively receive, evaluate and informally resolve all aspects of condominium property operation.

The staff and Ombudsman contact the individuals to try and resolve their issues within 24 hours of first being contacted. The Ombudsman himself directly contacts all legal professionals and legislative staff. The first aspect of response is to ascertain all of the facts relating to the particular situation by listening to the individual, board member, unit owner, manager, realtor, agent or attorney that had contacted the Office. This is then followed by an explanation of the procedures and the law relating to the matter. The next step is to intervene and to suggest options for resolution, followed by a plan and course of action to bring about a satisfactory result. Different solutions are proposed, depending upon the severity of the problem. The quickest and simplest resolution is always proposed first.

Many issues and complaints are simply resolved by a phone call to a member of the association or board regarding the problem, and an equitable solution is almost always achieved. Sometimes an agent of the association, manager or management company would be the only contact available. Most contacts attempt to assist the Ombudsman’s Office to resolve a dispute. However, some CAMs have intentionally defied and obstructed any proposal for a solution. These situations require the Ombudsman himself to intercede and notify the board members of the issue sought to be resolved and the problem of the uncooperative manager. Sometimes, even the attorney for the association has prevented the Ombudsman from resolving simple problems. Avenues are being explored to avoid this kind of situation that taxes the resources of the Office and causes undue expense to the parties involved.

Simple problems regarding general mismanagement of an association are occasionally brought to the attention of the board of directors by an informational and instructional letter. When many specific issues are involved, the Ombudsman’s Office enumerates them in a letter and requests that the board of directors consider them and apprise the Office of the association’s plan to remedy those specific issues. Sometimes the Ombudsman informally meets with the members of the association to assist them in the operation of their condominium in an effort to promote a healthy, happy, peaceful coexistence.

Resolution of more serious issues is by proposed mediation, which suggestion in and of itself usually brings about a favorable result. Some situations require referral of an individual to the Division of Condominium’s complaint process. The Ombudsman’s Office does not currently have the staff and facilities to investigate and handle complaints regarding serious financial abuse, misconduct or fiscal mismanagement. Serious alleged election misconduct and instances where a board of directors refuse to recognize and certify a Petition for their Recall are issues that are presently referred to the Division for resolution.

The Election Monitoring section of the Ombudsman’s Office has progressed to a desirable and respected level of control and oversight of condominium elections. The Office presently conducts and monitors between one and four elections a week. Several election monitors have been trained to provide this service, as coordinated by the Ombudsman. The election monitoring process and procedures instituted by the Ombudsman have been very effective in providing fair and impartial elections that are free from any appearance of fraud and impropriety, much to the satisfaction of the condominium unit owners who had requested that service. Some association directors, managers and their attorneys at times have attempted to obstruct the Ombudsman’s election procedures, but soon come to realize that there is no substitute for the appearance of fairness of an election. Pursuant to statute, the individual associations pay the cost of the election monitor. The procedures that are being constantly put into place are becoming more and more effective. The objective of the election monitor program is to satisfy and ensure unit owners that their election process is fair and free of fraud. There are still procedural situations to be addressed that require the utmost cooperation of the association to prevent any election system abuse. It appears that the election monitor may in some instances be required to take over the complete procedural election process to ensure that the election is conducted properly.

Currently the election monitor obtains voters’ names from the county appraiser’s list of condominium unit ownership. This list is then coordinated with the association’s verified roster and designated voters’ list to ensure that only the proper unit owners may vote. In some instances these list will be used to verify that an appropriate signature is affixed to the ballot envelope. The monitor may ultimately become responsible to send and receive all election notices and correspondence for the association. At the time and place of the election, the monitor, with the assistance of associate monitors and volunteers, will conduct the election. This procedure is designed to prevent any undue interference with the election process and ensure a fair, efficient and proper election.

Since its inception, the Office has monitored and conducted nineteen (19) elections. Some improper election situations required the monitor to request the board to re-notice and redo the election. Only one association refused at the insistence of its attorney; which case was referred to the Division for evaluation. As the election procedures are improved, and with the cooperation of the association, these situations should seldom occur.

The Education Section of the Ombudsman’s Office is a work in progress. This type of project requires extensive resources to establish and implement a system that will provide “the largest possible audience” with education and reference materials. The Ombudsman is working with different educators and educational institutions to create pilot programs and a comprehensive education plan. Experience shows that there are many organizations that offer education to persons associated with condominiums. Last year the DBPR awarded a $500,000 contract to the Community Associations Institute (CAI) to provide education to associations. There is some question as to the programs effectiveness and whether CAI has reached the intended target audience.

Licensed Community Association Managers (CAMs) are required to maintain continued education accreditation to maintain their CAM license. Certain private organizations provided these continued education courses and credits to CAMs for a set fee. Since these education sources are already in place and have the approval of the State, they may provide a resource for unit owners. Research is being done as to the economical feasibility of using these organizations and as to the material content they provide.

Certain “coalition groups” provide excellent education courses to associations. However, these “coalitions” only operate in limited areas of the state. An effort is being pursued to coordinate and expand this resource.

This Office finds that the directors of associations, as volunteers, are unable or unwilling to undertake education courses because of individual time and other logistical constraints. However, from the requests received, this Office feels that there is an interest in “issue related” information, education and guidance that a director may need. The Office is presently working to provide an inexpensive internet source directed to recurrent issues of concern that an individual director or unit owner may be confronting or experiencing. Information regarding the “issue” will not only be presented and clarified, but there will also be a legal reference regarding its foundation. It is anticipated that this will soon be available on the State’s “MyFlorida.com” website.

Of major importance and of general and statewide concern is that of procedural matters in the conduct of condominium unit owner and board of director meetings. The Division and the Legislature has provided some guidance. The Ombudsman’s Office intends to recommend that education regarding procedures for the conducting and handling of condominium meetings be specifically defined by administrative rule, or made available in a comprehensive guide or brochure.

The Office of the Ombudsman is currently considering a pilot program regarding general condominium operation that will be offered through Florida community colleges. Community college education courses, an interactive website, personal lecture appearances, and distribution of condominium operational materials to every condominium association is envisioned to provide the necessary education and information references to all interested persons.

The Ombudsman’s Office is required by Section 718.5012(3) of the Florida Statutes to make recommendations appropriate for legislation relative to Division procedures, rules, jurisdiction, personnel, and functions. The Ombudsman’s Office from its own experience confirms the findings of the recent report of OPPAGA that showed that the Division’s procedures, rules, personnel and functions are inefficient and ineffective. The Ombudsman’s Office has reviewed the Condominium Administrative Rules (Chapters 61B-15 through 61B-25, Florida Administrative Code) promulgated by the Division to interpret, enforce, and implement the Condominium Act. It is the opinion of the Office that those rules and procedures are not only confusing, obsolete and impractical, but also ineffective, inefficient, antiquated and in serious need of complete revision. The Office recommends that a committee comprised of persons knowledgeable in condominium law, knowledgeable about the problems associated with condominium fiscal and general mismanagement, and knowledgeable about the practical operation of condominium associations and corporations be established to rewrite those administrative rules.

This Office submits with this report Legislative Recommendations regarding recurring issues and problems that have been encountered throughout this first quarter of 2005, and attaches those recommendations to this report. The purposes of the recommended individual legislative changes are recommended to solve many of the complaint and inquiry issues that have been presented to the Ombudsman’s Office.