Bill McCollum Attorney General

A Special Project of the Florida Attorney General

May 10, 2010 Region Four
Alachua County Sheriff’s Office
2621 SE Hawthorne Road
Gainesville, FL 32641
352- 367- 4023

RESEARCH: SVC Complaint # AL00138 et al.

Research of Complaint Per Evidence Provided

1. Affordable Homes, Inc., recorded its Declaration of Covenants, Conditions and Restrictions (Covenants) for
the lands known as Tower Oaks Unit 1 with the Alachua County Clerk of Courts on May 26, 1981 to run with the
land from owner to subsequent owner(s).

2. “Tower Oaks Homeowners Association” (The Association) incorporated and received its Florida Articles of
Incorporation as a not for profit corporation controlled by the Covenants for the lands known as Tower Oaks Unit
1 with the State of Florida on August 6, 1981. Association By-Laws accompany the Articles of Incorporation.
The (1) Declaration of Covenants, Conditions and Restrictions, (2) Articles of Incorporation, and (3) Corporation
By-Laws are required by Florida Statute and are known as the Governing Documents.
Chapter 720 HOMEOWNERS' ASSOCIATIONS
720.301 Definitions.--As used in this chapter, the term:
(8) "Governing documents" means:
(a) The recorded declaration of covenants for a community, and all duly adopted and recorded amendments, supplements, and
recorded exhibits thereto; and
(b) The articles of incorporation and bylaws of the homeowners' association, and any duly adopted amendments thereto.
720.303 Association powers and duties;…. (1) POWERS AND DUTIES.--…The powers and duties of an association include those set
forth in this chapter and, except as expressly limited or restricted in this chapter, those set forth in the governing documents….

3. “Covenants” control and restrict one’s use of private property and are recorded against the deed by the seller.
“Articles of Incorporation” are granted by The State of Florida and recognize a business purpose.
“By-Laws” of the corporation direct how the corporation conducts its corporate affairs.

4. Covenants language allowed the Association to annex the properties of Tower Oaks Ridge on October 9,
1981; Tower Oaks Arms on December 4, 1981; Tower Oaks Manor on December 13, 1982; Tower Oaks Manor
re-platted lands on July 18, 1983; Tower Oaks Manor Unit 2 on September 12, 1983; and Pepper Mill on July 25,
1984; with all such areas controlled by the Covenants from Tower Oaks Unit 1 comprising some 430 Lot Owners.

5. Association By-Laws provide clear and unambiguous language that The Association Board of directors cannot
give birth to Rules and Regulations that control private property;
(By-Laws, Article VII, Section 1 Powers.) The Board of Directors shall [have] power to:
(a) “adopt and publish rules and regulations governing the use of the Common Area and facilities, and the personal conduct of
the members and their guests thereon, and to establish penalties for the infraction thereof;” (bold added for emphasis)
(c) “exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to
the membership by other provisions of these By-Laws, the Articles of Incorporation, or the Declaration;” (bold added for emphasis)

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6. For this Association Board to glean from the above language that The Board has power to adopt and publish
rules and regulations with fines that punish a Lot Owner’s private property use is apparently not possible. Only
members (Lot Owners) can change the By-Laws to give the Board that authority:

7. The Board employs Bosshardt Property Management, Inc. to manage the Association’s business.
8. The Covenants do not empower the Board to create rules and regulations governing private property use. On
April 5, 2005, an Association Board director Tom Daniel, also the Board’s attorney, observed at a Board meeting
that portions of the Covenants document that address some private property issues are insufficient:
from The Association Board meeting minutes 04/05/05
“Rules and Regulations:
Jodi also mentioned that there were rules being enforced in the subdivision by the Board of Directors that were never officially
voted in. Tom Daniel read the section of the by laws that said that the Board has the authority to make rules and regulations from
time to time, and that the rules in place were voted at a meeting at the Holiday Inn many years ago. … Never the less, the rules
that are in place are there to help maintain the community as the restrictive covenants are vague and give little definition of any
particular rules for the Association.” (bold added for emphasis)

9. On April 11, 2009 and in 2006 and 2007, The Association Board “revised” the Association Rules &
Regulations to govern a Lot Owner’s use of their own private property. The expressed intent is to acquire a
financial gain from Lot Owners without apparently having such authority from the Governing Documents (see # 5
above). The Association Board proclaimed in the Revised Rules & Regulations that such changes are:
“Revised per Covenants Article V, VII; Articles of Inc. Article IV; Or Alachua County Ordinance.” and that
“The Board of Directors has passed the above changes to the Covenants and By-Laws for the Rules and Regulations for all the
properties under the Tower Oaks Homeowners Association.” and that
“There will be a $25.00 per week fine imposed if the violation has not been corrected within ten (10) days….”
(the full 2007 document is available online at
http://www.toweroakshoa.com/documents/Rules-and-Regulations.pdf )
Theft by false pretenses is addressed by FS 812.012 (3)(d)(1) [Definitions].
10. It is clear from the above that the Board is enforcing Rules & Regulations not pertaining to Common Areas.
The first record obtained by Seniors vs. Crime of such Revised Rules & Regulations is December 7, 1996. With
these Rules, the Board is controlling private property and collecting fines and fees without apparent authority. The
Board then passes along the gained monetary profits to Bosshardt (see # 21 below). This activity continues with
Bosshardt’s knowledge, consent and participation (see # 14 below).
11. Seeing that The Association By-Laws do not allow the Board to adopt Rules & Regulations to control private
property, the Board instead attributes its authority to revise them per the Covenants: Article V and Article VII (see #
9 above). Reference to these articles appears irrelevant because Article VI expressly forbids the Board from taking
any revision or amendment action to the Covenants. This process, like the By-Laws, is only for Lot Owners.

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12. Further, the Board has consistently failed to record with the Alachua County Clerk what they call the “Revised”
1996, 2006, 2007 and 2009 changes to the Covenants. Recordation is also potentially mandated by the Florida
Supreme Court in Woodside Village Condominium Association, Inc. v. Jahren, 806 So.2d 452 (Fla. 01/03/2002).
Thereby; even if somehow validly created, without such recording the Rules & Regulations are void as Covenants.

13. The Rules & Regulations, apparently pretending to be Covenants, make it a violation to and provide a financial
penalty for such private property uses as:
Parking trailers on site.
Parking on grass.
Failing to use sealed bags to dispose of animal droppings.
Lawn grass longer than 6”.
Wrong fence height, material and construction.
Personal outdoor or sports equipment improperly stored or maintained.
and state that “There will be a $25.00 per week fine imposed if the violation has not been corrected within ten
(10) days from the date of the first notice….” (see # 9 above)
14. To instead change the By-Laws to create private property Rules & Regulations and then allow a penalty for
such violations would appear to require an amendment to the By-Laws, which right is given only to Lot Owners (see
# 6 above). But Bosshardt recognizes in the following 2005 email that this never occurred; yet, there is continuing
activity by Bosshardt and the Board to seemingly ignore the Governing Documents, as Bosshardt continues to
collect alleged false fines and fees for their financial gain. This document provides apparent evidence of that intent:

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15. Reportedly, Bosshardt’s ONLY LEGITIMATE RESPONSES to their expressed knowledge of impropriety
would be to: 1) cease using illegal Rules and Regulations to take money, 2) stop the Board from being so
engaged, and 3) report this taking to the proper authorities. But, instead, Bosshardt continues to operate this cash-
making activity in concert with the Board for its own financial profit.
Scheming to defraud is addressed by FL 817.034(4)(a).
Bosshardt Property Management, Inc. operates 55 other area associations.

16. On March 26, 2010 in an interview with WCJB TV20 News, Board director Tom Daniel attributed the
existence of the Board’s Revised Rules & Regulations to another Governing Document; the Association’s
Articles of Incorporation Article IV, as so stated in the 2006, 2007 and 2009 Revised Rules & Regulations
documents (see # 9 above). However, this Article IV recites only the Association’s “purpose.” Exercising this
“purpose” can only be done in accordance with the RECORDED Covenants and its RECORDED amendments
(see “a” and “b” below):

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17. The RECORDED Covenants list only 11 “Restrictions” that if changed or added to would require the Lot Owners’
amendment process (see # 9 and # 11 above). These are the only legal rules restricting private property use.
Essentially, the Board’s Revised Rules & Regulations to control private property use are illegitimate amendments
that cannot be recorded or enforced due to a failure to obtain a proper Lot Owner vote:

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18. The Association Board also appears to provide an allegedly false, deceptive and coercive threat for their
authority to enforce the illegitimate Revised Rules & Regulations on private property by declaring their right to
impose a lien against the property of a Lot Owner who does not comply with the Board’s fines:
from The Association Board meeting minutes on August 11, 2007
“New Business:
1. Lawn Violations
a. Those that need to be taken care of will need to be paid by the HOA and then billed to the homeowner.
b. If it’s a property with a lien, it will be added to the lien.”
(For reference: 2007 Florida Statute 720.305(2) … “A fine shall not become a lien against a parcel.” ….)

19. The Association Board at its June 14, 2008 meeting revealed that they utilize the U.S. Mail to notify Lot
Owners of private property use violations and collect fines from Lot Owners for such violations. Bosshardt
Property Management, Inc. does this as the Association’s hired Community Association Manager (CAM):
from The Association Board meeting minutes on June 14, 2008
“New Business
a) Debbie Houdershelt has stepped down as the CAM Officer over Tower Oaks and Bobby Houdershelt will be handling going forward.
b) Violation Letters – Bobby Houdershelt documented violations. (bold added for emphasis)
240 violations for Tower Oaks
57 violations for Peppermill
300 letters were sent out.”
Use of the U.S. Mail for fraudulent purposes is addressed by FS 817.034 (1)(b) [Legislative Intent] (Mail fraud).

20. The Association Board, also at its June 14, 2008 meeting, noted the desire to increase and perpetuate the
allegedly illegally obtained profits from Lot Owners for Bosshardt Property Management, Inc.’s benefit by
charging a new and allegedly fraudulent fee;
from The Association Board meeting minutes on June 14, 2008
“New Business
e) Violation fees were suggested to be collected instead of an increase for management fees. … It was agreed that the initial
warning would be a courtesy and any further violations of the same issue would incur a $15 fee for each violation, that would be
collected by Bosshardt, any other fees would be collected by the Association to pay for services provided (lawn Service) and/or
fees as stated in the by-laws. Tom Daniel made a motion to accept and Jodi Wood accepted. All in favor.” (bold added for emphasis)

21. The Covenants do not allow enforcement by fine as instituted by the Board and collected by Bosshardt.
Instead the Covenants only allow “proceeding at law or in equity.” This enforcement provision is the only
enforcement mechanism for Covenant violations and is also reflected in the Association’s Articles of
Incorporation Art. IV as described in its part “b” that references “the Declaration” (see # 16 above):

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22. From 2009 records, the Association Board and Bosshardt Property Management, Inc. collected $4,945.88 in
allegedly illegitimate Violation Fees, Violation Fines, Late Fee Income (for late annual assessments) and
presumably paid out to Bosshardt $2,157.50 as Management – Fine Fees. This record does not seem to reflect
any total of “a $15 fee for each violation, that would be collected by Bosshardt” as mentioned in # 20 above.

The Governing Documents appear to not allow this fine and fee action against private property use. Additionally,
the Board and Bosshardt have been recording the collection of $25.00 late fees for the 2009 annual assessment of
$60.64 when the Covenants allow only 10% per annum (51 cents per month).

23. The Tower Oaks Homeowners Association has no private roads, no swimming pools, no clubhouses, no
tennis courts, or other amenities. Residents report the only association assets are a small park on one lot that is
now closed, street corner lands that require mowing, rainwater retention pond(s), some lighting and various
neighborhood identifying signage. The Association reported in its 2009 annual “Revenue and Expenses” on two
line items under “Operating Expenses” that 42% of its income went to Bosshardt Property Management, Inc.
($13,237.50 above). It would appear that the above four line items of fees, fines and fine fees eventually benefit
Bosshardt Property Management, Inc. in either a payout (Operating Expense) to Bosshardt for “Management –
Fine Fees” and/or “Management Fees” as referenced in # 20 above. At the minimum, the Association reports
above that $4,945.88 was collected (INCOME) from allegedly improper fines and fees. The “Management – Fine
Fees” of $2,157.50 paid to Bosshardt (Operating Expenses) appears to be from an unknown source according to
this document. CAMs are reportedly paid employees of Bosshardt, benefiting from violation fines and fees.

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24. Bosshardt Property Management, Inc. uses postcards via U.S. Mail to demand payment of fines. The below
is an example of a card’s front side postmark and backside fine demand regarding a victim allowing their Lot’s
lawn to grow in excess of 6” in length (both sides contain victim’s personal notes):

25. The Bosshardt internet site at www.bosshardtpm.com/cam-services.php advertises under its “CAM Services”
“Covenant Non-Compliance Issues” that “Agent will act upon only the provisions set forth in the restrictive
covenants of the Association.” Bosshardt does not advise the Boards to cease collecting allegedly illegal fines.

26. I spoke with the Florida Department of Business & Professional Regulation’s Executive Director Dr.
Anthony Spivey (352) 850-922-5012 on 12/10/09 regarding the mandatory educational requirements of CAM
license holders. He advised that education and continuing education requirements meet Florida Statute Chapter
468 and Florida Administrative Rule 61E14-1.001 Prelicensure Education Requirements:
(http://www.myfloridalicense.com/dbpr/servop/testing/documents/camcib.pdf)
V. Management/Maintenance (18%)
1. Enforce Governing Documents
a. knowledge of rights and obligations of tenants/owners
b. knowledge of violations and enforcement procedures
c. knowledge of procedures for imposing fines, penalties, and fees
d. knowledge of alternative dispute resolution

27. My discussion with Dr. Spivey did not mention names or locations; however, his understanding of the above
facts led him to report that the CAM(s) involved are expected to professionally know enough from the education
required and the tests taken to not become involved in illegal activity and that the CAM(s) should either inform a
Board to change from its path of impropriety, or quit their association with a Board so as not to be involved in
illegal activity.

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28. In 2008, Bosshardt instituted a “per door” annual assessment against multi-unit building owners by charging
the annual assessment against the number of dwellings on a lot; rather than what is allowed by the Covenants,
which is simply for “each lot”:

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29. For 2009, this “per door” charge resulted in an additional $2,822.00 in allegedly fraudulent income (also see #
22 above). The below was compiled from Bosshardt Property Management, Document 2-10097-9:

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