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 Treetops at North Forty Homeowners Association, Inc., Petitioner, v. Case No Phyllis Dawson, Respondent. / SUMMARY FINAL ORDER This final order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. FINDINGS OF FACT On April 17, 2003, Treetops at North Forty Homeowners Association, Inc. (petitioner/association) filed a petition for mandatory non-binding arbitration, naming Phyllis Dawson as respondent/unit owner. The petition alleges that the respondent was granted permission to remove an oak tree from her property on the condition that it was replaced with a similar native species. The respondent s answer, filed on August 15, 2003, states that the respondent initially planted a crape myrtle tree to replace the oak tree that was removed from her property. The association informed the respondent that the crape myrtle was not accepted as a replacement tree and required the respondent to replace it with an acceptable tree. 1

2 However, the crape myrtle died and the respondent chose to replace it with a hibiscus tree. The respondent believed the hibiscus would be an acceptable replacement tree because her neighbor, Shirley White, had planted a hibiscus tree on her property as a replacement tree, and the association had not requested its removal. The association responded to these allegations on August 28, 2003 and September 3, One of the association s responses stated that [g]enerally, a hibiscus tree is an acceptable tree for a unit owner to plant on their property and further stated that Ms. White s hibiscus tree was approved, but it was not a replacement tree. The association argues that the respondent was provided with a list of acceptable replacement trees and has failed to plant a tree on her property identified from the association s list of replacement trees. Accordingly, the association alleges that the respondent has failed to properly maintain her unit s landscaping and yard, in violation of articles 9.1.2, 9.1.4B, and of the declaration of condominium and rule 13 of the association s rules. CONCLUSIONS OF LAW In reviewing the association s responses and the provisions of the condominium documents cited above, none of those documents provide an explanation or rationale for differentiating between replacement trees and nonreplacement trees. Furthermore, the association s responses have failed to provide a legitimate reason for specifically disallowing the respondent s hibiscus while approving her neighbor s hibiscus. The argument that one tree is a replacement tree and the other is not a replacement tree is wholly arbitrary and fails to provide a reasonable or legitimate basis for rejecting the respondent s tree. If the association 2

3 was permitted to require the respondent to remove the hibiscus planted on her property while allowing another unit owner s hibiscus, the association would be engaging in selective enforcement. Selective enforcement will succeed if the failure of the board to enforce the documents in other instances bears sufficient similarity to the case at issue as to warrant the conclusion that to permit the enforcement in the instant case would be discriminatory, unfair, or unequal. Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (September 4, 1996). Here, the association is clearly attempting to enforce a restriction against the respondent s landscaping which shares an identity with an adjacent unit owner s landscaping. As the association has failed to provide a legitimate reason for imposing this restriction against the respondent but not against another unit owner, selective enforcement has been established. Based on these findings, the association s ban on the respondent s hibiscus tree is unenforceable. Accordingly, the association is not permitted to require the respondent to remove the hibiscus from her property. The relief requested by the association, including the fine, is not granted. It is therefore ORDERED: The relief requested by the association is DENIED. The respondent is not required to remove the hibiscus tree planted on her property and the fine imposed by the association shall not be enforced. DONE AND ORDERED this 27 th day of October 2003, at Tallahassee, Leon County, Florida. 3

4 Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Right to Appeal As provided by section , F.S., a party which is adversely affected by this final order may appeal 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. Attorney s Fees As provided by section , F.S., the prevailing party in this proceeding is entitled to have the other party 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 Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 27 th day of October 2003: David C. Meyer, Esq. The Law Offices of Lobeck Hanson & Wells, P.A Main Street Suite 403 Sarasota, Florida

5 Phyllis Dawson 7708 Geneva Lane Sarasota, Florida Melissa Mnookin, Arbitrator 5