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 W. Kelly Stanton and Grady White, Petitioners, v. Case No Twin Towers Homeowners Association, Inc., Respondent. / FINAL ORDER ON PETITIONERS MOTION FOR REHEARING / RECONSIDERATION I. Procedure On December 29, 2008, Petitioners filed a Petition for Mandatory Non-Binding Arbitration alleging that Twin Towers Homeowners Association, Inc. (Association) sought to materially alter limited common element cement or concrete parking structures by replacing them with aluminum structures without approval of the Association membership. The work was approved only by the board of directors. The petition also alleges that the Association levied a special assessment for the work. On January 22, 2009, Petitioners filed a Verified Motion and Petition for Emergency Stay of Arbitration stating the contractor began tearing down the relevant structures on January 5, 2009, and the Association continues to allow the contractor to proceed in violation of the condominium documents and the statutes. Petitioners state they are without adequate remedy at law to stop the alleged violation of the condominium documents and the statutes and there is the high probability of success by Petitioners. 1

2 On January 28, 2009, the Association filed Respondent s Response to Verified Motion and Petition for Emergency Stay of Arbitration. On January 30, 2009, a telephonic case management conference (CMC) was held with both parties in attendance. At the CMC the parties argued the motion. On February 4, 2009, a Final Order of Dismissal was entered. On February 6, 2009, a Corrected Final Order of Dismissal was entered to correct the omission of the arbitrator s signature on the original final order. The final order took the Association s January 28, 2009 Respondent s Response to Verified Motion and Petition for Emergency Stay of Arbitration as the Association s motion in opposition to the petition for failure to state a cause of action pursuant to Fla. Admin. Code R. 61B , granted that motion, and dismissed the case. II. Motion for Rehearing/Reconsideration On February 17, 2009, Petitioners filed a Motion for Rehearing/Reconsideration. The Mandatory Non-Binding Arbitration Rules of Procedure provide the following with respect to motions for rehearing (1) A motion for rehearing may be filed within 15 days after the date of entry of the final order. The motion shall state with particularity the points of law or fact that the arbitrator has overlooked or misapprehended and shall not reargue the merits of the final order. Any response to the motion must be filed within 10 days of service of the motion. (2) The arbitrator shall not modify the substance of the final order except upon a showing that the decision is based on a clear error of law or fact. A motion that is timely filed pursuant to this rule shall suspend the operation of the final order, and the time for filing a complaint for trial de novo, a motion seeking to recover prevailing party costs and attorney s fees, or a petition for enforcement under Sections and , F.S., shall not commence until the arbitrator either denies the motion or enters an amended final order. An untimely filed motion for rehearing does not toll or otherwise stop the time provided for the filing of a motion for prevailing party costs and attorney s fees or the time provided for the filing of a petition for trial de novo in the courts. 2

3 Fla. Admin. Code R. 61B Respondent raises three issues in the motion for rehearing: one relating to the dismissal for failure to state a cause of action; one relating to the interpretation of provisions in the declaration of condominium allegedly beyond the scope of the arbitrator s authority; and a third relating to the nature of the case management conference. A. Failure to State Cause of Action Petitioners note, When determining the merits of a motion to dismiss, the trial court s consideration is limited to the four corners of the complaint, the allegations of which must be accepted in the light most favorable to the nonmoving party. Ocana v. Ford Motor Co., 992 So. 2d 319, 326 (Fla. 3d DCA 2008) quoting Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003). Petitioners contend that the arbitrator went beyond the four corners of the complaint and made rulings of fact. Petitioners make this assertion because the arbitrator wrote that under Petitioners reading of Article XIX, the provision arguably would preclude any alteration that temporarily inconvenienced the unit owners and that Petitioners interpretation would not be accepted. This not a finding of fact. Petitioners are re-arguing their contention that the modifications to the parking structures should require approval by the voting interests of the association because under the terms of the Declaration, the modifications prejudiced the rights of the owners in the use and enjoyment of their private dwelling because the garage area temporarily has been shut down requiring unit owners to make other parking arrangements. Such re-argument of the merits of the final order is prohibited. Fla. Admin. Code R. 61B (1). 3

4 Further, Petitioners seek to re-argue their contention the term material alterations is not subsumed under the term alterations in the Declaration. Such reargument also is prohibited by Fla. Admin. Code R. 61B (1). B. Interpretation of Ambiguous Provisions of Declaration As a basis for rehearing, Petitioners also argue [T]he arbitrator went through the Declaration and interpreted the word alterations which, on the face of Article XIX, is at best ambiguous. It is clear that the Division has no authority to interpret ambiguous provisions of condominium declarations and then enforce its interpretation. For this proposition, Petitioners cite Peck Plaza Condo. v. Dep t of Bus. Regulation, 371 So.2d 152 (Fla. 1 st DCA 1979) and Point Mgmt., Inc. v. Dep t of Bus. Regulation, 449 So.2d 306 (Fla. 4th DCA 1984). Peck Plaza involved the appellate review of the final agency action of the Division of Land Sales and Condominiums of the Division of Business Regulation pursuant to a hearing officer s recommended order requiring the petitioners to install a separate electric meter for an elevator that served only the floor which was owned by the petitioners. The question was whether the Division had authority to render a valid interpretation of the condominium documents with respect to the intent of the parties regarding who is responsible for the cost of the operating expenses for the limited common element elevator. The court found that no provision in the condominium law granted the department the authority to interpret and enforce its interpretation of the condominium contract which the court admittedly found ambiguous. Point Mgmt. involved the question of whether the department exceeded its authority when it rejected an order of the administrative hearing officer to the contrary and found certain golf course expenses were common expenses under the condominium documents, ordered the associations to assess each unit owner his proportionate share and to cease collecting greens fees from unit owners. Relying on 4

5 Peck Plaza, the court found the department exceeded its authority because its actions involved the department construing and interpreting various condominium documents which had been a part of a settlement approved by the circuit court. Petitioners misapprehend the meaning of Peck Plaza and Point Mgmt. with respect to arbitration pursuant to current section , Fla. Stat. First, the decision in Peck Plaza predates the statute creating the precursor to the arbitration jurisdiction found in section , Fla. Stat. See Ch , 4, at 741, Laws of Fla. and (2)(m) and , Fla. Stat. (Supp. 1982). Section , Fla. Stat., in its current form was first enacted in Ch , 10, at 738, Laws of Fla. Further, and more importantly, section (4), Fla. Stat. (2008), provides, in pertinent part, The decision of an arbitrator shall be final; however, a decision shall not be final agency action. Thus, Peck Plaza and Point Mgmt. are not controlling authority. 1 See Hammock Pine Village IV Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No (March 17, 1996)(arbitrators employed by Division are independent of Division and arbitration decisions do not constitute final agency action or bind Division); Habana Park Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No (Nov. 19, 1993)(while arbitrator is employed by Division, decisions are made independently of policy-makers and arbitrator is not bound by the findings of its personnel). C. Case Management Conference Petitioners contend in their Motion for Rehearing / Reconsideration that in the case management conference held on January 30, 2009, the arbitrator permitted Respondent s attorney to argue his position concerning the response to the Petition for Emergency Stay of Arbitration and allowed Respondent s attorney to state matters of 1 Similarly, Arlen Beach Condo. Ass n, Declaratory Statement , is not controlling authority. 5

6 fact and essentially conducted an ambush evidentiary hearing for which Petitioners were not prepared. Petitioners do not state what matters of fact Respondent s attorney presented. Petitioners were given the opportunity to support their statement in their emergency stay petition that there is the high probability of success in this action by Petitioners. In any event, Petitioners never presented this as a fact specific case either in the petition or in their Verified Motion and Petition for Emergency Stay of Arbitration. This case always was about the meaning of the words in Article XIX of the Declaration. However, Petitioners did attempt to introduce belatedly a copy of minutes from a 2002 board of directors meeting as part of Petitioners Reply to Respondent s Response to Petitioners Motion for Rehearing / Reconsideration. The minutes reflect a property manager s interpretation of the vote needed to change the paint color on the outside of the building. Even if the property manager s interpretation could be accepted after the final order was issued, it would not change the outcome of the case. Florida. Based upon the foregoing, it is ORDERED: Petitioners Motion for Rehearing/Reconsideration is DENIED. DONE AND ORDERED this day of May, 2009, at Tallahassee, Leon County, Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

7 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 day of May 2009: Karl W. Bohne, Esq. Schillinger & Coleman 1311 Bedford Drive Melbourne, FL John Soileau, Esq. Watson Soileau Deleo, Et Al North US Highway 1 Cocoa, FL Glenn Lang, Arbitrator 7