v. Case No SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows:

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 Poinciana Place Condominium Association, Inc., Petitioner, v. Case No Steven Black, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: The association filed its petition in this matter on February 5, 2001, seeking entry of a final order requiring respondent to remove his limousine from the condominium property. The petition states, and respondent does not deny, that as part of the approval procedure whereby Mr. Black was approved to become an owner, he was informed that limousines were not permitted. He further signed an application for purchase containing his handwritten agreement not to park his limousine on the property. The letters attached to the petition suggest that the association considered that the vehicle was used as a commercial vehicle (one letter suggests that Mr. Black is a limousine driver for hire) and contains commercial markings and was disallowed on this basis. In the pre-litigation letters, respondent disputes that the vehicle is a commercial vehicle and asserts that the vehicle is used for private passenger purposes. The application for purchase of a unit signed by Mr. Black provided: 9. No commercial vehicles, trucks, boats, trailer, motor homes, mobile homes, campers, recreational vehicles, 1

2 motorcycles, mopeds, etc. 1 permitted to park on the premises overnight. The answer raises the defense of selective enforcement and alleges that the rule is not being enforced against the owners of trucks parked on the property. The arbitrator does not find this defense to be compelling. Examples of selective enforcement sufficient to activate the defense are only those examples that are similar enough to warrant the conclusion that the association is being unfair, unreasonable, or arbitrary in seeking to maintain the instant enforcement action. Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (September 4, 1996) and Order on Request for Clarification (October 9, 1996). Consistent with this analysis, it has been held that selective enforcement was not shown where an association enforced its truck prohibition against pickup trucks but not against Jeeps and Rangers. Lester v. Pine Ridge at Delray Beach Condominium Association, Inc., Arb. Case No , Summary Final Order (October 28, 1994). Selective enforcement was also not shown where the association sought to enforce a truck prohibition but had failed to enforce a prohibition against motorcycles in Lott v. The Moorings of Pinellas County Condominium Association, Inc., Arb. Case No , Order Dismissing Petition (May 30, 1995). In Landmark Oaks Condominium Association, Inc. v. Smith, Arb. Case No , Order Setting Final Hearing (January 30, 1998), the arbitrator held that vans are not comparable to light trucks and therefore cannot serve as the 1 The fact that the rule prohibits the specifically designated vehicles "etc." suggests that the intent of the rule is prohibit anything other than regular passenger automobiles. Respondent's vehicle is certainly not an ordinary passenger automobile. 2

3 basis for selective enforcement in a case initiated by the association seeking removal of a pickup truck. Based on these considerations, the defense of selective enforcement is rejected. Trucks and limousines are fundamentally dissimilar vehicles in terms of their dimensions, weight, appearance, and function. The association may properly decide that limousines, given their overall length, pose particular problems in parking, driving, and storage, and that these problems exist apart from any problems that arise from allowing trucks on the property. The defense of selective enforcement is accordingly struck. As part and parcel of rejecting this defense, the arbitrator similarly rejects respondent's claim that because the association does not enforce the prohibition against trucks, respondent is being discriminated against by the association's enforcement policies. The respondent had earlier asserted that the use of the vehicle had been for his personal transportation. However, in response to written inquiries from the arbitrator, respondent stated that the vehicle has been used for the commercial transportation of passengers in the last 5 years with such use ending in June, Respondent also asserts that the copy of the signed application for approval attached to the petition bears a notary public seal and that the notary was not present when he signed the application. Respondent asserts that the application is therefore null and void. This is not true; respondent does not deny signing the document and there is no requirement in the law that such an application be notarized. In sum, respondent agreed at the time of the purchase of the unit not to bring the vehicle on the property; the limousine has been used for commercial purposes until recently; and respondent has shown no meritorious defenses to this action. By signing the application form, respondent implicitly acknowledged that the vehicle in question was one prohibited by the applicable rules and cannot be heard now to complain that the vehicle is 3

4 permitted on the property. Based on these considerations, the respondent shall within 14 days of this order permanently remove the vehicle from the condominium property and shall not cause the vehicle to be brought onto or parked on the property again after 14 days has passed. Respondent shall in the future comply with applicable parking rules. Florida. DONE AND ORDERED this 2nd day of May, 2001, at Tallahassee, Leon County, Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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 2 nd day of May, 2001: Guy Shir, Esquire,Becker & Poliakoff, P.A., 500 Australian Avenue South, Ninth Floor, West Palm Beach, Florida 33401, and to Steven Black, 3654 Poinciana Drive, Lake Worth, Florida Karl M. Scheuerman, Arbitrator Right to Appeal In accordance with s , F.S., this final order may be appealed by filing a complaint 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 4

5 appeal. If this order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney's Fees In accordance with s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney's fees. A motion conforming to the requirements of rule 61B , F.A.C., must be filed with the Division within 45 days of the entry and mailing of this final order. 5