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 STEAMBOAT BEND EAST CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No SAM SKY, Respondent. / FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: The petitioner/association filed a petition seeking removal of a spa installed by the respondent/unit owner. The association further sought an order requiring the unit owner to record a covenant to run with the land regarding roof panels installed by the unit owner or, alternatively, an order requiring him to remove the panels. Additionally, the association sought an order requiring the unit owner to remove vertical blinds he installed in his lanai area. After the filing of an answer and other filings, the undersigned entered an order denying the respondent s motion to dismiss, in which the respondent had objected to the petition on grounds of jurisdiction and of an ongoing dispute in another forum. The arbitrator s order, entered August 24, 2000, is incorporated by reference herein. This arbitration case proceeded to final hearing conducted telephonically on October 16, At the hearing, the petitioner was represented by Keith H. Hagman, Esq. The respondent 1

2 did not appear for the hearing and has not communicated to the arbitrator regarding his non-appearance. This order is entered upon consideration of the entire record in this matter. The petition and answer established as undisputed facts that the respondent sought permission from the petitioner in October 1997 to install panels on the roof of his lanai, which would prevent rain from entering the portion of the lanai which is open to the sky, and to install a spa in the lanai. The petitioner granted approval to add the panels, upon condition that the respondent record a covenant to run with the land in the county public records. The respondent did not record the covenant. Prior to making a decision on whether to approve the installation of the spa, the association requested the respondent to furnish five items. These were: (A) blueprints for the electrical installation of the 220-volt line, along with an electrician s determination of the amount of electrical service currently available in the building so the board could determine whether there was enough service so all owners in the building could add an additional 220-volt line if requested; (B) a method for drainage of the water from the spa for safety and liability reasons; (C) approval from the master association regarding water usage; (D) plumbing blueprints for the spa; and (E) sufficient information to determine that the noise level of the spa would not disturb other residents. The respondent installed the spa in his lanai and also installed vertical blinds in the lanai area. The association did not grant approval for the installation of the spa. At the hearing, the association manager, Carol Henke, testified that the respondent did not provide the documentation for the spa regarding the electrical capacity in his unit or in other units. She further testified that the respondent stated that, for drainage, he would run a hose down the public stairs to the garage. That was not acceptable and it would also 2

3 not be acceptable for sanitary reasons that he drain the spa out the window. The respondent orally advised Ms. Henke that he could drain the spa into his bathtub, but she did not know if he did so. Ms. Henke added that the respondent also did not furnish the approval from the master association for the water use. In addition, she stated, the respondent did not provide the plumbing blueprints or the information regarding the noise level. She also testified that the respondent stated that the spa would be installed on a foam or rubber mat. Ms. Henke also explained that the covenant was required as a prerequisite to approving the roof panels so that a future buyer of the unit would be on notice that the association was not responsible to maintain the panels. Carol Henke testified that she visits the condominium property one to three times a week and has personally observed from outside the unit the spa installed in the lanai. The lanai faces the golf course. She has also observed from outside the roof panels and the vertical blinds. After he installed the blinds, the respondent reversed them so that the white side of the blinds faces outward when they are closed; however, when they are open, the black, inner surface of the blinds is visible from the outside. The witness stated that she has received complaints about noise from the spa, but has not heard the noise herself as she has only visited the property during the daytime, when the respondent is not normally home. In support of its claim for relief, the association asserts the following paragraphs of the Restrictions Upon Use of Units and Rules: 19. A unit owner may neither make nor cause to be made any structural addition or alteration to the unit nor to the common elements without the written approval of the Association. No shutters, enclosures or roll-ups are permitted on screen porches unless approved in writing by the 3

4 Association. * * * 21. All window curtains or draperies used on window casings which are visible from the exterior of the premises shall be covered by white lining or shall be of a neutral color. 22. No unit owner shall make repairs, remodel or alter his unit in any way, in any manner which will affect the appearance of the exterior of the building without the approval of the Association; provided that this limitation shall not apply to the Developer. The undersigned notes that paragraph 9BI of the Condominium Declaration defines the exterior boundary of the unit as follows: The exterior of the outside walls of the unit building except where there is attached to or in existence as a part of the building a balcony, or other portion of the building serving only the unit being bounded, in which event the boundaries shall be such as will include all such structures. Provided, however, that the unit owner is specifically prohibited from changing the appearance of the exterior boundaries of his unit without the consent of the Association. Accordingly, the lanai is a part of the unit, bringing the permission requirement of rule 22 into play. Since the installation of the spa and the roof panels are visible from the exterior of the building, their installation requires approval of the association pursuant to rule 22. The petitioner had reasonable concerns concerning water and electrical use of the spa, and other factors, and acted reasonably in denying approval where the required information was not fully supplied. In addition, recordation of the covenant was a reasonable contingency for approval of the roof panels, and the respondent did not comply with this condition. the rule. Rule 21 prohibits the vertical blinds, the black color of which is in nonconformity with On the basis of the foregoing, it is concluded that the petitioner has presented a 4

5 prima facie case for award of relief in this case, since petitioner has shown that the respondent violated the Restrictions Upon Use of Units and Rules. The respondent pled several affirmative defenses, one of which was that the petitioner should submit legal proof that recordation of the covenant pertaining to the panels is necessary. The respondent further contended that other residents of the condominium do not adhere to the rules, essentially a defense of selective enforcement. He was instructed in the order entered on August 24, 2000, that he would need to present evidence at the final hearing in order to explain or establish these defenses. Since he presented no evidence regarding the defenses, they are STRICKEN. Because the petitioner s entitlement to relief has been established and the defenses stricken, relief is granted. On the basis of the foregoing, it is ORDERED and ADJUDGED: 1. The relief requested by petitioner is GRANTED. Respondent shall permanently remove the spa within 30 days of mailing of this final order. Respondent shall within 30 days from mailing of this order record in the Lee County public records a covenant to run with the land pertaining to the roof panels, which covenant shall be in the form supplied by petitioner s counsel, with correct information supplied thereon. If such covenant is not recorded, the roof panels must be removed within 45 days from mailing of this final order. Respondent shall remove the vertical blinds from the lanai within 30 days of mailing of this order. 2. Respondent shall in the future abide by Paragraphs 21 and 22 of the Restrictions Upon Use of Units and Rules. DONE AND ORDERED this 29th day of November, 2000, at Tallahassee, Leon 5

6 County, Florida. RIGHT TO APPEAL 6 Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida As provided by s , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties. ATTORNEY S FEES As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other parties pay its reasonable costs and attorney s fees. Rule 61B , 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 actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , 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, this 29th day of November, 2000, to: KEITH H HAGMAN ESQ PAVESE HAVERFIELD ET AL

7 P O DRAWER 1507 FORT MYERS FL Attorney for petitioner/association SAM SKY 320 S FLAMINGO RD PMB 211 PEMBROKE PINES FL Respondent/unit owner Tyler Powell, Arbitrator 7