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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION The Innlet at Ponte Vedra Beach Condominium Association, Inc., Petitioner, v. Case No Lisa K. Bissell and CoalesCo, Ltd., Respondents. / SUMMARY FINAL ORDER Statement of the Issue The issue in this case is whether the unit owners have violated the declaration of condominium restriction which limits use of the unit to single household, residential noncommercial purposes. Procedural History On October 22, 2008, Petitioner, The Innlet at Ponte Vedra Beach Condominium Association, Inc., filed a Petiton for Arbitration against the unit owner, Lisa K. Bissell, and a corporation, CoalesCo, Ltd., which lists the unit as its principal place of business. An Order Requiring Answer was entered on October 30, Respondents filed an Answer and Affirmative Defenses on December 1, On December 3, 2008, an Order Requiring Supplemental Filing was entered, requiring Petitioner to file a list of exhibits and witnesses with a statement of specific facts sufficient to survive a motion for summary final order, and allowing Respondents to respond to such filing. On December 30, 2008, Petitioner filed a Response to Order Requiring Supplemental

2 Filing. On January 6, 2009, Respondents filed Respondents Reply to Order Requiring Supplemental Filing. Findings of Fact 1. Petitioner is the entity responsible for management of The Innlet at Ponte Vedra Beach Condominium. 2. Respondent, Lisa K. Bissell, is the owner of a unit in the condominium identified as 19 Sea Winds Lane South, Ponte Vedra Beach, FL (the Unit). 3. Respondent CoalesCo, Ltd., is a Florida corporation. The Florida Division of Corporations lists the Unit s address as CoalesCo s principal place of business. 4. Scott Bissell, the nephew of Ms. Bissell s husband, rents the Unit from her and occupies it as his primary residence. 5. Ms. Bissell s husband is the manager of Collaborative Partners, LLC, which LLC is the sole general partner of CoalesCo, Ltd. Lisa s husband employs Scott Bissell to perform certain work for CoalesCo. 6. Scott performs work for CoalesCo in the Unit. His work activities consist of paperwork, phone calls and exchanging s. No customers of CoalesCo visit the Unit. The husband/uncle comes to the Unit a couple of times a week, but no other employee of CoalesCo visits the unit. No business professionals or collectors come to the Unit because of the home office. There is no shipping or receiving of product at the Unit. There is no signage or other evidence of the office use of the Unit on the exterior of the condominium. 7. The next door neighbor of the Unit complains that he hears frequent ringing of telephones and loud conversation from the unit. 2

3 8. Other than telephones and conversation, no activity in the Unit is perceptible to the outside or common elements. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes, to determine the authority of the board of directors to require the owner to take action involving the owner s unit or the appurtenances thereto. The Petition for Arbitration alleges Respondents are violating Article 12, Section 12.1, of the Declaration of Condominium for The Innlet at Ponte Vedra Beach, A Condominium. That section provides: 12.1 Units Each Unit shall be used for a single household and for residential non-commercial purposes only. Nothing herein shall be construed to prohibit leasing of the Units, provided that such leases are in compliance with Paragraph hereof. Rule 61B , Florida Administrative Code, provides that if no disputed issues of material fact exist, the arbitrator shall issue a summary final order. The Order Requiring Supplemental filing in this case placed the burden on Petitioner to present evidence of objectively observable appearance, activities or burdens on common elements from commercial activity, that caused inconvenience, annoyance or discomfort to neighboring residences. The only specific activities Petitioner s statement of the evidence has presented frequent telephone rings and loud conversation are not inconsistent with purely residential use. The conflict between residential and business uses is an old one, which the Florida Supreme Court addressed in a case involving enforcement of a restrictive covenant by a 3

4 neighbor in In Moore v. Stevens, 106 So. 901 (Fla. 1925), the Court stated: Instances are not lacking in which other courts have held or intimated that property restricted to use for residential purposes, so long as it is in good faith used for such, may be also used to a minor extent for the transaction of some classes of business or the following of some professional pursuits so long as the latter use is in fact casual, infrequent, or unobtrusive and results in neither appreciable damage to neighboring property nor inconvenience, annoyance, or discomfort to neighboring residents. This view, however, further requires such additional use to be so reasonably incidental to the prescribed use and such a nominal or inconsequential breach of the covenants as to be in substantial harmony with the purpose of the parties in the making of the covenants, and without material injury to the neighborhood. [Citations omitted] It is clear that the use of the Unit in this case is no more obtrusive than a residential use without any business activity might be. A noise level so loud and constant that it constitutes a nuisance from a unit might violate the declaration, but the current Petition makes no such an allegation. Although it is not controlling authority to interpret the declaration restriction, the arbitrator takes official notice of the St. Johns County Land Development Code which allows limited home office uses in residential districts. That is additional persuasive authority that home offices are commonly accepted as incidental to single family residences. The restriction in Petitioner s Declaration, a limited reference to non-commercial purposes, does not clearly prohibit a home office. The provision must be strictly construed to allow a unit owner to use his property as he pleases, so long as he does not disrupt the integrity of the common scheme. Hidden Harbour Estates, Inc. v. Basso 393 So. 2d 637 (Fla. 4th DCA 1981). In Basso, the Court required the Association to 4

5 demonstrate a reasonable relationship between the provision sought to be enforced and and the objectives sought to be achieved. Strict construction of the phrase non-commercial purposes must begin with the definition of the word commercial. The first meaning listed for commercial in Webster s II New College Dictionary (1995) refers to commerce the buying or selling of goods. Based upon that definition, the prohibition of section 12.1 of the Declaration does not apply to a home office business without inventory, merchandise or physical interaction with customers. When home office use is otherwise recognized as acceptable in areas restricted to residential uses, as in the St. Johns County Code, the intent to exclude such a use must be explicit and readily understandable in the language of the prohibition. The intent of section 12.1 is not expressed in words that clearly prohibit a home office business. Even if section 12.1 could be interpreted to apply, enforcement in this case could not pass the Basso test because there is no evidence that activity within Respondents Unit disrupts or conflicts with the residential objectives of the condominium. Based upon the foregoing it is ORDERED that Respondents have not violated section 12.1 of the Declaration of Condominium for The Innlet at Ponte Vedra Beach, A Condominium, and Petitioner s requests for relief are Denied. DONE AND ORDERED this 12th day of January, 2009, at Tallahassee, Leon County, Florida. Bruce A. Campbell Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida

6 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed within 30 days in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed within 45 days in accordance with Rule 61B , F.A.C Certificate of Service I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this 12th day of January, 2009: D. Randall Briley, Esq. 135 Professional Drive Suite 101 Ponte Vedra Beach, Florida Jonathan R. Huffman, Esq. Smith Hulsey 225 Water Street, Suite 1800 Jacksonville, FL Bruce A. Campbell 6