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 LAWRENCE TRESÍZE, Petitioner, v. Case No HOLIDAY APARTMENTS CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER On April 8, 2002, unit owner Lawrence Tresíze filed a petition for arbitration naming Holiday Apartments Condominium Association, Inc. as respondent. The petition alleges that rain water collects in front of the petitioner s unit when it rains, that there are no rain gutters on the roof to divert rain from the petitioner s door, that the common element door lock in the storage room is inoperable, that the stepping stones outside of the petitioner s unit are not level and are dangerous for the petitioner to walk on due to the petitioner s disability, that the petitioner s front door needs to be painted and that the screen door on the front door needs to be replaced. On April 30, 2002, the respondent filed an answer to the petition, in which it denies responsibility for any leaking that might be occurring in the petitioner s unit. With regard to the rain gutters, the respondent states that the rain gutters are 1

2 requested to divert water on the rear of the petitioner s unit outside of the enclosed lanai door, which the petitioner installed, and that there are no gutters on the entire building. The respondent further alleges that the addition of gutters on the building would constitute a material alteration to the common elements. The respondent denies that the storage room lock is inoperable and asserts that this is not a dispute subject to arbitration because it involves maintenance of the common elements. The respondent contends that the stepping stone are at the rear of the petitioner s unit, that the petitioner has access to his unit through the front and that the petitioner is requesting an order requiring the association to install a sidewalk, which would constitute a material alteration to the common elements. The respondent denies the allegations regarding the painting of the door and the screen door. Pursuant to notice, a formal hearing was held in this matter, on June 11, The hearing took place at the law firm of Kanetsky, Moore & DeBoer, P.A. in Venice, Florida. The arbitrator appeared from Tallahassee, Florida via telephone. The petitioner represented himself. Robert L. Moore, Esquire, represented the respondent. The parties presented the testimony of witnesses and tendered documents into evidence. Since the final hearing the respondent has filed a transcript of the proceeding and its proposed findings of fact and conclusions of law. The petitioner has filed numerous pleadings including a summary of the arbitration proceeding. 2

3 During the hearing, the petitioner admitted that water no longer leaks into the floor of his unit. Therefore, this issue is moot. The petitioner requests that the association be ordered to install rain gutters because when there is heavy rainfall the force of the rain prevents him from leaving his unit. Although the petitioner might not wish to face the force of the rain from his rear door, he is not prevented from leaving his unit because his front door exits onto a covered area. Moreover, the board has wide discretion regarding the degree of maintenance required in a particular set of circumstances. Raska v. The Fountains Association, Inc., Case No , Summary Final Order (December 23, 1994). The exterior of the building is a part of the common elements and is to be maintained by the association. The actions of the board pursuant to its statutory duties to maintain the common elements are protected by the business judgment doctrine, and there has been no showing that the board has been arbitrary or irrational in this regard. Therefore, the petitioner s request that the association be required to install rain gutters is denied. The next issue is whether the storage room lock is inoperable. Margaret Peggy Fustos, president of the board, testified that there has been no complaints regarding the door except from the petitioner. Ms. Fustos also testified that at the time the petitioner was having difficulty entering the door that the petitioner was told that he was attempting to use the wrong key. Although Ms. Fustos alleged statement is possibly hearsay, Ms. Fustos provided credible testimony that the lock works. Also, the petitioner failed to state how he was uniquely impacted by 3

4 the condition of the common element lock, which is required where a complaint involves an alleged failure of the association to maintain the common elements. Without establishing how a unit owner is uniquely impacted, the arbitration lacks jurisdiction over such disputes. See Section (1), Florida Statutes. Therefore, for both of these reasons, the relief requested by the petitioner regarding the common element lock is denied. The petitioner next complaint involves the condition of the stepping stones outside of the petitioner s unit. The petitioner and one other unit owner have stepping stones at the rear of their units. The petition submitted a pair of his shoes to the arbitrator to show the difficult that he has when walking on the stepping stones. The association states that the petitioner has not requested that he be allowed to install a sidewalk at his expense; instead, he asks that the association be required to install a sidewalk. The respondent cites to 24 C.F.R , of the Fair Housing Act, which allows a handicapped person to make reasonable modification of existing premises at the handicapped person s expense. The petitioner has not shown that stepping stones are somehow flawed, but he has shown that he has difficulty walking on them. Consequently, the association is not required to alter the stepping stones and is not required to install a sidewalk. To accommodate the unit owner s disability, the association is required to allow the unit owner to install a new sidewalk or stepping stones at the unit owner s expense. 4

5 The petitioner s final two complaints involve the condition of the paint on the front door and the condition of the screen door. The association admits that the doors needing painting, but it contends that it is awaiting the completion of repairs of a nearby roadway before it paints the doors. The association states that it plans to perform the necessary maintenance on the door at a later date. This complaint highlights the importance of the business judgement rule and why an arbitrator should not substitute her judgement for that of the board of directors. This request for relief is accordingly denied. Based on the foregoing, it is ORDERED: 1. The relief requested by the petitioner is denied. 2. However, the petitioner may at his expense install a sidewalk or different stepping stones outside of the rear of his unit. Prior to any such installation, the unit owner must present a proposed plan to the association for approval. DONE AND ORDERED this 11th day of September 2002, at Tallahassee, Leon County, Florida. RIGHT TO TRIAL DE NOVO Cassandra Pasley, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida

6 Pursuant to section , Florida Statutes, this decision shall be binding on the parties unless a complaint for trial de novo is filed by an adversely affected party in a court of competent jurisdiction in the circuit in which the condominium is located within 30 days of the date of mailing of this order. This final order does not constitute final agency action and is not appealable to the district courts of appeal. ATTORNEY S FEES As provided by s , 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 MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Lawrence Tresíze, 708 South Tamiami Trail, Unit 109, Venice, FL and Robert L. Moore, Esquire, 227 Nokomis Avenue S., Venice, FL 34285, this 11th day of September Cassandra Pasley, Arbitrator 6