Filing 63315856 E-Filed 10/25/2017 02:53: 15 PM IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA CASE NO.: 432017CA000164CAAXMX NORMAN ZLINKOFF AND JOHN J. KATSOCK, JR AS CO-TRUSTEES OF THE NORMAN ZLINKOFF LIVING REVOCABLE TRUST DATED AUGUST 14, 2007, Plaintiffs, v. LANDING INC, A FLORIDA NOT FOR PROFIT CORPORATION, Defendant. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND PARTIAL FINAL JUDGMENT mF COMPLAINT THIS CAUSE, having come before the Court on October 10, 2017, upon Plaintiffs? Motion for Partial Summary Judgment as to Count I (?Motion?), against Defendant and the Court being advised and having reviewed the ?le herein, and having heard extensive argument of Counsel makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. This case involves a dispute by and between Plaintiffs and Defendant over the disclosure and dissemination of a management contract by and between Defendant?s Manager, Brian Reich, and Defendant (?Contract?) and the budgetary or financial records which indicate the specific compensation paid to Mr. Reich as the manager of Defendant (?COmpensation?). Additionally, a dispute exists as to whether Co-Plaintiff, Mr. Katsock, Jr. may inspect Defendant?s official records pursuant to Fla. Stat. ?720.303(5) despite official records requests made by Mr. Katsock, Jr. as his name is not listed on the 1 . IO vesting deed to the property located within Defendant association. 2. Plaintiffs? ?led a two (2) count complaint for declaratory relief and damages and presented the following issues to this Court for consideration at the hearing on the Motion for Summary Judgment as .to count I of the Complaint: a. Despite the Defendant?s insistence that the intent of the contracting parties to the Contract was for it to be con?dential, is the management contract nonetheless subject to disclosure pursuant to Fla. Stat. ?720.303(4) and (5) (2017). b. Is Mr. Katsock, Jr. entitled to make of?cial records requests to the Defendant and is Defendant-required to allow him access to its official records due to his membership in Defendant association even though he is not listed on the vesting deed to the property located in Defendant association. 3. Defendant answered the complaint and pied as an af?rmative defense that John-J. Katsock, Jr. does not have standing to bring this suit in his capacity as co-trustee. 4. Defendant maintains that: a. Because the contract by and between Defendant and Brian Reich was executed in 2006, it is governed by the 2006 version of Fla. Stat. ?720.303. b. Even though the 2006 version .of Fla. Stat. ?720.303(4) requires Defendant to maintain all management contracts as of?cial records and ?720.303(5) requires dissemination of same to members, the Contract is not subject to disclosure because Defendant believes it is a personnel ?le of Defendant and is excluded from disclosure. Alternatively, if this Court were to apply the 2017 version of Fla. Stat. ?720.303, wherein the Florida Legislature specifically states that written employment agreements with an association or management company employee and budgetary or ?nancial records that indicate compensation paid to same do not constitute personnel records, 2 making them mandatorily disclosable, it would be a retroactive impairment of contract rights in violation of the Florida Constitution, Art. I, ?10 to require disclosure to Plaintiffs. d. Additionally, the Defendant believes that Mr. Katsock, Jr., even though a member of Defendant association and a co-trustee and bene?ciary of Plaintiff trust, is not entitled to of?cial records because he is not a parcel owner as that term is defined in Fla. Stat.? ?720.301 since his name is not on the face of the deed for the property located in Defendant association. . The essential facts in this case I are not in dispute, indeed, the parties submitted a stipulation of facts for the benefit of this Court and the provisions of the stipulation are expressly incorporated herein. . In addition to the stipulation of facts, Plaintiff Norman Zlinkoff in his capacity as co-trustee of the Norman Zlinkoff Living Revocable Trust dated August 14, 2007 (?Trust?) executed and filed an affidavit attesting to the following facts, whiCh were not disputed by Defendant: a. John J. Katsock, Jr. was appointed co-trustee of the Trust on January 21, 2014. b. That Zlinkoff previously provided a copy of the Trust, as amended, to Defendant. . The parties agree that Plaintiffs have not been provided with the Contract at issue in this matter and no other inspection of it has occurred due to the alleged con?dential intent of the parties and Defendant?s refusal to release it. . Defendant does not dispute that both Norman Zlinkoff and John J. Katsock, Jr. are members within Defendant association. Defendant does not dispute that Norman Zlinkoff is a parcel owner as that term is defined in Fla. Stat. ?720.3o1 (2017). . The Defendant is governed by Fla. Stat. ?720, et seq. as it is a hOmeowner's association. CONCLUSIONS or LAW 10.This Court has reviewed the case law provided by counsel for each party and has reviewed the relevant statutes, to wit Fla. Stat. ?720.303 (2006), Fla. Stat. ?720.303 (2017) and Fla. Stat. ?720.301 and has otherwise heard extensive argument of counsel for each party to this action. .This Court makes the following conclusions of law: 2006 Florida Statute ?720.303 11.The 2006 version of Florida Statute ?720.303(4) contains the following provision:_ OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the of?cial records of the - Association. . 12.Subsections and of ?720.303(4) (2006) contain the following provisions: A current copy of all contracts to which the association is a party, including, without limitation, any management which the association has any obligation or responsibility. The ?nancial and accounting records of the must include, (1) accurate, itemized and detailed records of all receipts and expenditures; (4) any other records that identify, measure, record or communicate ?nancial information. 13.The 2006 version of Florida Statute ?720.303(5) contains the following provision: INSPECTION AND COPYING OF RECORDS. .The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their aUthorized agents at reasonable times and places within 10 days after receipt of a written request for 14.The 2006 version of Florida Statute exempts the following 4 from disclosure: Disciplinary, heath, insurance and personnel records of the association's employees. 2017 Florida Statute ?720.303 15.The relevant portions of the 2017 version of Florida Statute and are identical to the 2006 versions, however the 2017 version contains the following under Personnel records of association or management company purposes of this subparagraph, the term ?personnel records" does not include written employment agreements with an association or I management company employee or budgetary or financial records that indicate the compensation paid to an association or management company employee. 16.The 2017 version of Fla. Stat. ?720.303(5) contains the following provision: INSPECTION AND COPYING OF official records shall be maintained within the state for at least 7 years and shall be made available to a parcel owner for inspection or photocopying within 45 miles of the community or within the county in which the association is located within 10 business days after receipt by the board or its designee of a written request. This subsection may be complied with by having a copy of the of?cial records available for inspection or copying in the community or, at the option of the - association, by making the records available to a parcel owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. If the asSociation has a photocopy machine available where the records are maintained, it must provide parcel owners with copies on request during the inSpection if the entire request is limited to no more than 25 pages. An association shall allow a member or his or her authorized representative to'use a portable device, including a smartphone, tablet, portable scanner, or any other technology 5 capable of scanning or taking photographs, to make an electronic copy of the official records in lieu of the association?s providing the member or his or her authoriZed representative with a copy of such records. The association may not charge a fee to a member or his or her authorized representative for the use of a pdrtable device. 17.Afterl careful review, this Court concludes that under both the 2006 and 2017 versions of Fla. Stat. ?720.303, Defendant was required by law to disclose the Contract and to speci?cally disclose the Compensation. 18.In reaching this conclusion, this Court has strictly interpreted the plain language of the statutes at issue and ?nds guidance in Romero v. Shadeood Villas Homeowners Ass?n, Inc.. 657 So. 2d 1193 (Fla. 4th DCA 1995). Therein, the Fourth District Court of Appeal found it important for courts to recognize that, is an elementary principle of statutory construction, that in determining the effect of a later-enacted statute, courts are required to assume that the Legislature passed the later statute with knowledge of the prior-existing laws.? Romero, id at 1195. 19. Thus, it is clear to this Court that in clarifying and by further delineating the term ?personnel records? under Fla. Stat. the Legislature recognized that, in fact, a management contract and the budgetary or financial records that indicate compensation paid to an association or I management company employee are subject to disclosure under Fla. Stat.- ?720.303 and always were sUbject to said disclosure. While the 2006 version of Fla. Stat. ?720.303 does not include this distinct provision, the 2017 version of Fla. Stat. ?720.303 provides meaningful guidance and a clear interpretation to this Court in making its ruling requiring disclosure which is contained herein. 20.Even if this Court were to apply the 2006 statutes to the issues presented herein, as Defendant has requested, rather than the 2017 version of the statutes as Plaintiff requests, the Outcome is the same, mandatory disclosure of the Contract and Compensation. 21.Additionally, this Court has reviewed the relevant portions of Fla. Stat. 6 ?720.303(5) regarding the individuals entitled to inspect and copy the official records contained in Fla. Stat. This Court ?nds that the Florida . LegislatUre has interchangeably used the term ?parcel owner" and ?member? throughout said statutory section. The terms are inextricably intertwined with each other. Of particular note, under Fla. Stat. the Florida Legislature has delineated a ?member" as the individual entitled to damages against an association if an official records request is willfully denied. Had the Florida Legislature intended that only a ?parcel owner" be allowed to make of?cial records requests, a ?parcel owner" would not be entitled to damages for the association?s willful violation of a proper official records request under a strict reading of this statute. This Court ?nds no logic in such a conclusion. This Court specifically ?nds that the Florida Legislature did not intend to exclude members from the class of individuals entitled to make of?cial records requests under Fla. Stat. ?720.303(4) and (5) which is clearly supported by the Legislatures interchangeable use of ?parcel owner? and member" throughout Fla. Stat. 22.Therefore, this Court necessarily ?nds that Defendant?s argument is unpersuasive and co-plaintiff John J. Katsock, Jr., as a member of Defendant association, has standing to bring this action and is entitled to make of?cial records requests pursuant to Fla. Stat. 23.Final y, Defendant has claimed that the disclosure of Brian Reich's contract would be an impermissible retroactiVe impairment of a contract in violation of Art. I, ?10 of the Florida Constitution. In support of this argument, Defendant primarily relies upon two cases, Assoc. of Golden Glades Condo. Club Inc. v. Securing Mgmt. Corp., 557 So. 2d 1350 (Fla. 1990) and my. Grand Condo Ass?n, 62 So. 3d 1120 (Fla. 2011). 24.First, this-Court notes that no retroactive impairment has occurred based upon this Court?s express ?ndings hereinabove, in particular, that even when I applying the 2006 version of Fla. Stat. ?720.303(4) and (5) as urged by Defendant, mandatory disclosure of the Contract and Compensation is required. It should be noted, however, that this Court has also considered the 7 balancing test set forth in Allied Structural Steel Co. v. Spannaus. 438 U.S. 234 (1978) which was later adopted by the Florida Supreme Court in Pomoanio v. Claridge of Pompano Condominium. Inc., 378 So. 2d 774 (Fla. 1979). 25. Despite Defendant?s insistence that prior to undertaking the balancing test set forth by these cases there must be a finding that the Florida Legislature intended for a statute to apply retroactively, this Court does not find support for this argument. Instead, these cases make clear that this Court must ?rst look to the nature of the alleged impairment and decide if contract is made worse or is diminished in quality, value, excellence or strength.? Lawnwood Medical Center, Inc. v. Seeder, 959 So. 2d 1222, 1223 (Fla. 4th DCA 2007) (citing Pomoanio v. Claridqe of Pompano Condominium, Inc.. 378 So. 2d 774 (Fla. 1979)). 26.In reviewing the nature of the alleged impairment, the disclosure of the Contract which was intended by Defendant and Brian Reich to be con?dential, this Court understands that it must a balancing test which measures the level of impairment against the public purpose to be served.? Columbia Hosp. Corp. of South Broward v. Fain. 16 So. 3d 236 (Fla. 4th DCA 2009) This Court further understands that, ??An impairment may. be constitutional if it is reasonable and necessary to serve an important public purpose?? and acknowledges that: The first inquiry must be whether the state law has, in fact, operated as a substantial impairment of a contractual relationship. The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at the ?rst stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpOse of the state legislation. I_d. (quoting Allied Structual Steel Co. v. Soannaus, 438 U.S. 234 (1978)). 27.In conducting this balancing test, the Court notes'that the only issue is whether the Contract by and between Brian Reich and Defendant, which was intended by those two parties to be con?dential, can be impaired by 8 disclosure to a member and parcel owner of Defendant association. 28.This Court concludes that Defendant did not provide speci?c argument or evidence against disclosure of the Compensation as falling within a disclosure that would constitute a retroactive impairment of a contract and therefore no balancing of this requested disclosure by Plaintiff is required and the Compensation must be disclosed by Plaintiffs. 29.Insofar as the Contract, this Court, in employing the balancing test set forth hereinabove, finds that the disclosure of the Contract does not rise to a level of substantial impairment which would support Defendant?s position. 30.This Court notes that the requirement for disclosure of the management contract and budgetary or financial records that speci?cally indicate the compensation paid to Brian Reich by Defendant promotes transparency for members and parcel owners in the Defendant association. Florida Statute ?720.303(4) and (5), controlling on all homeowner associations throughout Florida, provides for transparency and records disclosure for homeowner association members and parcel owners throughout Florida, an important public purpose for all residents throughout this State in homeowners associations. 31.Thus, even though this Court has found hereinabove that the Contract and Compensation must be disclosed pursuant to Florida Statute, this Court also ?nds that even if said information was not speci?cally required to be disclosed by Florida Statute, the mere-disclosure of the Contract and Compensation under the facts present in this case does not rise to such a substantial impairment of the Contract to prohibit its disclosure under the balancing test adopted by the courts of this State. THEREFORE, IT IS ORDERED AND ADJUDGED THAT: 32.Defendant shall, within ?ve (5) days of the date of this Order, turn over to Plaintiffs the full and complete management contract by and between Brian Reich and Defendant association, including any addendums thereto. 33.Defendant shall, within ?ve (5) days of the date of this Order, turn over to 9 oh Plaintiffs the budgetary or ?nancial records that specifically indicate the compensation paid to Brian Reich by Defendant. 34.Co-plaintiff John J. Katsock, Jr., as a member of Defendant association and as co-trustee of the trust which owns real property in Defendant association, shall be forthwith entitled to record access to Defendant's official records as set forth in Fla. Stat. and all such of?cial records requests by John J.-Katsock, Jr. shall. be valid and binding on Defendant. 35.This Court reserves jurisdiction to determine the prevailing party in this action and reserves jurisdiction to award the prevailing party its attorney's fees and costs at a subsequent hearing and enter a supplemental judgment on said attorney?s fees and costs. I 36.This Court further reserves jurisdiction to adjudicate all additional claims contained in the complaint ?led in this suit. DONE and ORDERED in Stuart, Martin County, Florida, this gay of October, 2017. . . I ROBY ., Circuit Court Jud Vi?. ef?gfvm? 9 Copies furnished;a to: Nexzander Gonano, Esq., 1600 5. Federal Highway, Suite 200, Fort Pierce, FL 34950 adonano@gh~ ~iaw. com ?(as Cohen, Esq. 222 Lakeview Avenue, Suite 120, West Palm Beach, FL 33401 Lee.cohen@csklegal.com 10