STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WILLIAM LILL, Petitioner, v. Case No ROCK HARBOR CLUB, INC., Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary order where no disputed issues of material fact exist. The arbitrator has jurisdiction over this matter pursuant to section (1)(a), Florida Statutes. The petitioner is a unit owner within the meaning of section (25), Florida Statutes. The respondent is an association within the meaning of section (2), Florida Statutes. William Lill, unit owner/petitioner, filed a petition for non-binding arbitration naming Rock Harbor Club, Inc., the association, as respondent. The petition alleges that the association removed the petitioner s boat from the condominium property and placed it in a local storage facility, in violation of the condominium documents. As relief, the petitioner requests that the arbitrator find that the petitioner may keep his boat on the condominium property and that the association be found liable for the rental fees incurred as a result of the removal of the petitioner s boat. 1

2 On April 27, 1999, the respondent filed an answer in which it does not deny removing the petitioner s boat from the condominium property. However, the respondent lists several defenses and contends that the association s decision to require the removal of the boat falls within its authority. The undisputed facts are as follows: the petitioner owns a 19-foot sailboat. The petitioner stored his sailboat on a trailer in an area of the condominium property commonly referred to as the trailer yard in 1996, 1997, and 1998, and paid an annual fee of $ Other unit owners store their sailboats on trailers in the trailer yard and are also charged an annual storage fee. 1 On July 4, 1998, a meeting of the Board of Directors of Rock Harbor was held. At that meeting, a motion was made by the vicepresident, and seconded by the president, to require the removal of petitioner s sailboat prior to July 31, No reason for this action was stated within the minutes. On July 6, 1998, the president of the association sent the petitioner a letter informing him that the board unanimously approved a resolution to send the petitioner a message to remove his sailboat from the condominium property, immediately. On August 14, 1998, the vice-president of the board sent the petitioner a letter informing him that the board had elected to remove the petitioner s sailboat from the condominium property and that the boat was now located at Bennett Storage. The petitioner asserts that the rules and regulations do not authorize the board to stop him from storing his boat in the storage yard. In the alternative, the petitioner contends that this storage has been historically allowed, and that if the rules were now changed that the storage of petitioner s boat would be grandfathered. The unit 1 The association asserts that none of the other boats are as large as the petitioner s boat. 2

3 owner s contention that his boat would be grandfathered-in implies that the boat was being stored on the condominium property prior to the promulgation of the relevant rules and regulations. Based upon the pleadings it is unclear which came first: the petitioner s boat or the 1996 rules and regulations. However, even if the rules pre-date the petitioner s initial storage of his boat on the property, none of the rules listed in the comprehensive Marine section of the rules and regulations prohibit the petitioner s storage of his boat on the condominium property, as demonstrated herein. In its answer, the association lists several defenses. First, the association asserts that a boat request form was not submitted to the manager, and if a request were submitted, it would be denied. As support for this position the association cites Rule B(2) of the rules and regulations, which provides as follows: 2. Boats are not permitted in the club until a boat request form has been submitted to the manager. (form available at the office.) The Marine Committee and or President reserves the right to refuse admission of any boat based on the length, width, height from keel, weight, construction and availability of suitable storage space. Boats may not exceed 26 feet in length from the bow, or tip of the bow sprint to the rear of the engine/s. Both parties agree that the petitioner began storing his boat on the condominium property in The above quoted rule does not require unit owners to renew their request annually; therefore, the initial acceptance of petitioner s boat remains in effect. Furthermore, the association s account receivable ledger dated April 30, 1998, contains an entry for petitioner s unit (C07) annual boat storage fee for $50.00 dated April 15, The association s action in accepting the petitioner s boat storage fee runs counter to its assertion that if the petitioner had submitted a request to store his boat it would have been denied. 3

4 The association further contends that no other unit owner was permitted to store a sailboat comparable to the petitioner s boat and that the only sailboats stored there are small boats which may be launched at the respondent s facility. Neither the rules and regulations nor the declaration expressly or implicitly limit the storage of sailboats to boats that can be launched from the association s property. Therefore, whether petitioner s sailboat can be launched from the association s property is immaterial. The association additionally asserts that the petitioner s boat has not been launched recently and evidently is being stored for repairs only, and the storage facility is not to be used as a boat yard. Section 10(c) of the declaration provides, in relevant part, [a]dequate provisions shall be made for storage of apartment owner s boats in the boat lift and storage sections of the premises. (Emphasis added). The condominium documents do not require a unit owner to launch his boat a minimum number of times or within a certain time frame in order to continue to store his boat on the association property. The declaration simply requires provisions be made for storage of unit owners boats. Thus, whether or not the respondent has launched or repaired his boat is immaterial. The association also asserts that petitioner s sailboat cannot be placed on racks in the boatyard and must be trailered; it is not the type of sailboat which was intended to be stored on the premises. In support of this assertion, the association cites Rule B(20), which provides, in pertinent part, as follows: [s]unfish, lasers and other sailboats shall be stored in the racks in the trailer yard. (Emphasis added). As previously stated, section 10(c) of the declaration provides that adequate provision shall be made for storage of apartment owner s boats in the boat lift and storage sections of the 4

5 premises. The test identified by the courts in assessing whether a board rule is valid is whether the rule contravenes an express or implied condition found in the declaration, and whether the rule reflects reasoned decision making, i.e., whether the rule is reasonable and is designed to accomplish its stated purpose. Beachwood Villas Condominium v. Poor, 448 So. 2d 1143 (Fla. 4th DCA 1984); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). An association cannot adopt a rule which in effect amends the declaration of condominium. Gordon v. Palm Aire Country Club Condominium Association, Inc., 497 So. 2d 1284 (Fla. 4th DCA 1986). Therefore, to the extent that Rule B(20) contravenes section 10(c) of the declaration, it is invalid. More specifically, the association cannot limit the storage of sailboats on the association property to boats that can be stored on the racks in the trailer yard. Finally, the association argues that the rules provide that [p]rovision will be made for storage of one owner s boat per apartment under cover to the limit of available storage and [a]ll boats will be numbered and assigned to correspondingly numbered spaces in the boat sheds. The petitioner s sailboat cannot be placed under cover and never has been given an assigned, numbered space. The above citations appears to stem from Rules B(1) and (3) of the rules and regulations, which provides, in pertinent part, as follows: 1. Provision will be made for storage of one owner s boat per apartment under cover to the limit of available storage. When available space is exhausted a waiting list by date of application shall determine priority when space becomes available. When there is excess space, an owner may store a second boat on the premises, subject to having space available for a new boat owner.... * * * 5

6 3. All boats will be assigned to spaces in the boat sheds. Boat space assignments are not permanent and may be changed from time to time at the discretion of the Manager and Marine Committee in order to accommodate the arrival of new boats. The association, in essence, is arguing that only boats that fit within the covered spaces on the association property are permitted. Once again, the association s interpretation of the rule conflicts with the rule s plain language. When read in its entirety, the purpose of Rule B(1) is to fairly distribute the covered spaces, not to prohibit sailboats that do not fit within these spaces. As for the second part of this argument, the declaration provides that boats may be stored in the boat lift and storage sections of the premises. Therefore, the argument that the petitioner s boat was not assigned to a numbered boat space in the shed is unpersuasive, since there is no valid requirement that the boat be stored in a shed. On the basis of the above authority, it is clear that the association s decision to remove the petitioner s boat was unwarranted. The petitioner requested reimbursement for the storage fees necessitated by the association s placement of his boat in storage at Bennett Storage, which charges $40.00 per month, in August It is estimated that the petitioner has paid 12 months of storage costs, totaling $ Based upon the foregoing, it is ORDERED: 1. The relief requested by the petitioner is hereby GRANTED. 2. The respondent is prohibited from preventing the petitioner from storing his sailboat on the association property. 3. The respondent shall pay the petitioner $ within 30 days from the date of entry of this order. 6

7 DONE AND ORDERED this 18th day of August, 1999, at Tallahassee, Leon County, Florida. Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 18th day of August, 1999, to: Russell H. Cullen, Esq Overseas Highway Key Largo FL Attorney for petitioner William M. Douberley, Esq. Douberley & Cicero NW 79th Court, Ste. 101 Miami Lakes, FL Attorney for respondent Tyler Powell, Arbitrator 7