Finst Development, Inc. v. State, Department of Business Regulation, Division of Florida Land Sales and Condominiums

456 So. 2d 952

• Court: District Court of Appeal of Florida
• Decided: September 18, 1984
• Docket: No. 83-1894
• Status: Published

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

Appellant seeks review of an administrative order which assesses a civil penalty in the amount of $7,500 for violation of laws regulating the sale of condominiums.

A developer of a condominium violates Section 718.502, Florida Statutes (1983),¹ where it fails to file with the Division of Florida Land Sales and Condominiums, documents required to be furnished to buyer or lessee by Section 718.503 (disclosure) and Section 718.504 (prospectus or offering circular) prior to an offering. For a violation of the statute, the Division may assess a penalty not to exceed $5,000 pursuant to Section 718.501(l)(d)4.²

Separate offenses are committed under Section 718.502, Florida Statutes (1983) as to each offer of a contract for the purchase of a unit. A contrary interpretation would allow a developer to escape the full impact of the statute by simply adding $5,000, the maximum penalty allowed for a single offense under Section 718.501, to his operating expenses. This was certainly not the intention of the legislature when it enacted Section 718.502.

Since the statute authorizes a civil penalty in the amount of $5,000 for each offense, and the appellant clearly offered a number of contracts for the purchase of units, the $7,500 penalty imposed here is not subject to modification as being excessive. See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978).

Affirmed.

1 . Section 718.502, Florida Statutes (1983) provides in pertinent part:

718.502 Filing prior to sale or lease.—

(1) A developer of a residential condominium shall file with the division one copy of each of the documents and items required to be furnished to a buyer or lessee by ss. 718.-503 and 718.504, if applicable. Until the developer has so filed, a contract for sale or lease of a unit for more than 5 years shall be voidable by the purchaser or lessee prior to the closing of his purchase or lease of a unit.

(2)(a) Prior to filing as required by subsection (1), a developer shall not offer a contract for purchase or lease of a unit for more than 5 years but may accept deposits for reservations upon the approval of a fully executed escrow agreement and reservation agreement form properly filed with the Division of Flori-da Land Sales and Condominiums.

2 . Florida Administrative Code Rule 7D-17.01(2) also requires that a developer comply with Sections 718.503 and 718.504 prior to making an offering. This is expressly a proscription against the same activity which the statute addresses and cannot form the basis for an additional penalty.