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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION ELIZABETH P. CLINGAN, Petitioner, v. Case No SPINNAKER COVE CONDOMINUM ASSOCIATION, INC., Respondent. / FINAL ORDER DISMISSING PETITION FOR LACK OF JURISDICTION On March 10, 2005, Elizabeth P. Clingan filed a petition for arbitration against her condominium association, Spinnaker Cove Condominium Association, Inc. (association) for its failure to enforce the condominium documents against other unit owners, specifically, Jerry and Susan Gunn, who are referred to as the defendants in the petition because an action has been brought by the petitioner against them in the circuit court. The petitioner alleges that the Gunns were authorized by the board to build a dock for their own private use. The location of the proposed dock is adjacent to a sea wall that is a common element of the condominium. The petition alleges that Section F of the Rules and Regulations requires certain minimum documentation be provided to the board to obtain approval for the building of a private dock. Petitioner contends that the association failed to require compliance with Section F of the Rules and Regulations in that the Gunns (1) failed to obtain notarized signatures of all unit owners on the hold harmless agreement regarding sea wall damage and other liability, and (2) failed to obtain letters of consent 1

2 from all immediately neighboring unit owners, including petitioner. In essence, the petitioner contends that the association has failed to require compliance with its own rules and regulations and, thus, has failed to comply with the rules and regulations itself. Petitioners seek an order requiring the association to comply with the association s rules and regulations and to rescind its approval for construction of the dock. The petition must be dismissed. The arbitrator has jurisdiction to hear and decide only those controversies that constitute disputes as defined in section (1), Florida Statutes. Section (1) provides as follows: (1) DEFINITIONS. As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. 2. Alter or add to a common area or element. (b) The failure of a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. Subsection (a) specifies those cases that qualify as a dispute in which the association s authority to act is being challenged; subsection (b) specifies those cases qualifying as a dispute in which the failure of the association to take action is being challenged. When a party alleges that the association failed to take appropriate action, the failure alleged must be that the association failed to properly conduct elections, failed to give proper notice, failed to properly conduct meetings, or failed to allow inspection of the official records or 2

3 the controversy is not a dispute subject to arbitration. No other controversies alleging a failure of the association to take appropriate action come within the arbitrator s jurisdiction. In this case, the petitioner is not challenging the authority of the association to alter or add to a common element, which is what was alleged by petitioner as the jurisdictional basis for the petition. The association is not altering or adding to the common elements. What petitioner is challenging is the failure of the association to enforce the rules and regulations relating to the approval of private docks against the Gunns, which is a controversy that does not qualify a dispute subject to arbitration. See Florida Administrative Code Rule 61B (6). In addition to not being specifically identified as a dispute under section (1), Florida Statutes, such cases primarily involve a disagreement between unit owners, which is clearly outside the jurisdiction of the arbitrator. See Florida Administrative Code Rule 61B (2). There are numerous cases holding that an arbitrator does not have jurisdiction over a case alleging the association s failure to enforce the provisions of the condominium documents against another unit owner. See, e.g., Adkins v. Bear s Paw Condo. I Ass n, Inc., Arb Case No , Final Order of Dismissal (June 24, 2004)(petition was dismissed that alleged the association failed to enforce the condominium documents against another unit owner who had constructed a fish pond and patio extension on the common elements); Wheeler v. Lighthouse Village Condominium, Association, Inc., Arb. Case No , Final Order Dismissing Petition for Arbitration (July, 1996)(petition filed against association for failing to enforce the association s rules and regulations against the upstairs neighbors for installing tile flooring dismissed for lack of jurisdiction, citing to rule 61B , Florida Administrative Code, subsection (6), which requires dismissal of 3

4 petitions alleging the failure of the association to enforce the condominium documents); Jackson v. Royal Point Manor West Condo. Ass n, Inc., Arb. Case No , Order Rejecting Count 1 of the Petition for Arbitration (October 10, 1994)(holding there was no jurisdiction over conflicts alleging that the association was failing to properly enforce the condominium documents, noting that in 1994, the original House Draft Committee Bill provided that a dispute would also include the failure of a governing body, when required by law or association document, to properly enforce the condominium documents; which proposed language was subsequently deleted before Chapter , Laws of Florida, was enacted); McNelis v. Ocean Club II Condo. Ass n, Inc., Arb. Case No , Order Dismissing Petition for Arbitration (November 24, 1992)(arbitrator lacked jurisdiction where unit owner sought to challenge the failure of the association to enforce minimum rental periods against other unit owners). Here the petitioner is challenging the failure of the board to require the Gunns to comply with the Rules and Regulations regarding private docks. Because the petitioner s cause of action is based on the failure of the association to enforce the condominium documents, the arbitrator does not have jurisdiction to hear the case pursuant to section , Florida Statutes. Of course, the petitioner may file an appropriate action against the association in court. Indeed, the petitioner has already filed an action in court against the Gunns concerning this matter. Therefore, based on the foregoing, it is ORDERED: The petition for arbitration is dismissed for lack of jurisdiction. 4

5 DONE AND ORDERED this 24th day of March, 2006, at Tallahassee, Leon County, Florida. Diane Grubbs, Arbitrator Dept of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida (850) Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 24th day of March, 2006: Peter J. Vasti, Esquire Fisher & Sauls, P.A. P.O. Box 387 St. Petersburg, Florida Counsel for Petitioners Diane A. Grubbs, Arbitrator Right to Appeal As provided by section , F.S., a party who is adversely affected by this final order may, within 30 days of the entry and mailing of this final order, file a complaint for a trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located. This order does not constitute final agency action and cannot be appealed to a district court of appeal. 5