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, WINSTON TOWERS 600 CONDOMINIUM ASSOCIATION, INC. Petitioner, V. Case No JOSEPH JABLONKI AND MIRTA JABLONKI, Respondents. SUMMARY FINAL ORDER This order is entered pursuant to Rule 61 B , Florida Administrative Code, which permits the arbitrator to enter a summary order where no issues of material fact remain in dispute. The material facts that are agreed to by both parties are sufficient to render a final order resolving the dispute set out in the petition. Winston Towers 600 Condominium Association, Inc. filed a petition for nonbinding arbitration against Joseph Jablonki and Mirta Jablonki (Respondents). The petition alleged that the Respondents have maintained potted plants on their balcony, in violation of section 12.2(i) of the association's bylaws, which states in pertinent part: "nor shall any Unit cause or allow the planting or growing of any type of shrubbery, flower, tree, vine, grass or other plant life outside the building without the prior written consent of the board of directors." 1

2 The board citied a need to "protect the balconies from excess weight, from water penetrating and destroying the re-bars." For that reason, the board of directors passed, on March 21, 2002, a rule requiring unit owners to remove all plants from the balconies. The Respondents filed an answer to the petition in which they admitted the presence of the disputed plants and challenged the legitimacy of the section of the by-laws cited above. The association filed a reply to that answer demonstrating that the by-law was properly passed. The Respondents submitted arguments, contending that the underlying rationale put forward by the Petitioner for this policy, i.e., a need to protect the structural integrity of the balcony, was disputed by the local municipal building inspector, While the rationale behind the current policy is disputed by the Respondents, the policy adopted by the board falls within the bounds of the business judgement rule. See Tresize v. Holiday Apartments Condo. Assoc. Inc., Arb Case , Final Order (Sept. 11, 2002) (the actions of the board in maintaining the common elements are protected by the business judgement doctrine and there was no showing that the board had been arbitrary or irrational) Additionally, the Arbitrator raised the issue of possible grandfathering due to a portion of the bylaws, 12.1(d), that had expressly allowed "decorative foliage of a customary nature." The association responded that this change was necessitated by the need to protect the structural integrity of the balconies. 2

3 This is a similar conflict to a case where an owner claimed that he would be deprived of the grandfathered-in status of his old windows when the association mandated hurricane shutters. In that case the Arbitrator stated that the grandfathering policy was not in line with public policy considerations. Specifically, [h]urricane shutter protection serves the public interest by protecting the residents and their property against storm damage. Pascone v. Palm Worth, In., Arb. Case No , Order On Motion For Temporary Injunction (February 13, 2001). In this case, as in Pascone, even if the right to have foliage on a balcony were grandfathered, it would have to yield to safety considerations. Based on the foregoing, it is ORDERED: 1) The Respondents shall remove any live vegetation from their balcony within ten (10) days of this order. 2) They shall comply with section 12.2(i) of the association's bylaws in the future. DONE AND ORDERED this 15 th day of May 2003, at Tallahassee, Leon County, Florida. RIGHT OF APPEAL Peter Gioia, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 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 3

4 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. ATTORNEY'S FEES As provided by Section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney's fees. Rule 61 B , F.A.C., requires that a party seeking an award of costs and attorney's fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actuafly received by the Division within this 45-day period and must conform to the requirements of rule 61 B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney's fees. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to Jay E. Auerbach, Esq., Khani & Auerbach, 2338 Hollywood, FL 33020, Joseph Jablonki and Mirta Jablonki, " Street, Unit 919, Sunny Isles Beach, this the 12" day of May Peter Grant Gioia, Arbitrator 4

5 Jay E. Auerbach, Esq. Khani & Auerbach 2338 Hollywood, FL Joseph Jablonki and Mirta Jablonki " Street, Unit 919 Sunny Isles Beach,