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 BARBARA M. ADAMS, Petitioner, v. Case No YORKTOWN AT BEACON PLACE CONDOMINIUM ASSOCIATION, INC., Respondent. / ORDER STRIKING CLAIMS, DENYING MOTION TO DISMISS, AND REQUIRING ANSWER Relevant Procedural History On January 31, 2013 Petitioner Barbara M. Adams filed a petition for arbitration naming Yorktown at Beacon Place Condominium Association, Inc. (the Association) as Respondent. An Order Requiring Answer was entered on February 8, On February 14, 2013, the Association filed a motion to dismiss, pursuant to Rule 61B , Florida Administrative Code, stating as grounds therefore that Petitioner s letter to the Association dated November 14, 2012, fails to comply with the requirements of section , Florida Statutes. Petitioner filed a response to the Association s motion to dismiss on February 25, Order Striking Claims for Lack of Jurisdiction The arbitrator has jurisdiction to hear and decide only those controversies that constitute disputes as defined in section (1), Florida Statutes, which provides as follows: 1

2 (1) DEFINITIONS.--As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. 2. Alter or add to a common area or element. (b) The failure of a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. "Dispute" does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. Upon careful review of the petition and attachments, it is clear that the heart of most of the matters in dispute described in the petition revolves around the Association s failure to properly enforce the governing documents against other unit owners. In summary, Petitioner alleges that: 1. The Association mistakenly allowed the owner of Unit 615A to enclose her screen porch in a manner that is not permitted under the Declaration of Condominium of Yorktown at Beacon Place, Phase 5, A Condominium, Article XI, Paragraph A, Section 4, as amended May 26, 1999, or Article XVI, Section A, Paragraph 12, as amended May 26,1994. The porch enclosure project also included replacement of windows and doors with models that do not conform to the Declaration. 2. The Association erroneously tried to correct its mistake by holding a vote of all unit owners within Yorktown at Beacon Place, not just those in Phase 5, on October 15, The voting instruments 2

3 incorrectly characterized the alteration for which the Association sought retroactive approval as an alteration of the common elements. The vote was triply incorrect because: a) The Declaration for Phase 5, Article IV, Paragraph C, Unit Boundaries, subparagraph 2a, Perimetrical Boundaries, states that the Units include balconies, loggias, specific portions of the exterior walls, and in the case of ground floor units (such as Unit 615A) terraces serving the unit. Therefore, a vote to approve an alteration of the common elements has no impact on an unapproved alteration of a unit; b) Only the owners of units within Phase 5 should have been allowed to vote on an alteration to a unit located within Phase 5. Unit owners from other phases have no voting interest in the declaration for Phase 5, and inclusion of their votes may have diluted the votes of unit owners within Phase 5, preventing their will from being carried out; and c) Even if one assumes, for the sake of argument, that the porch enclosure is an alteration of the common elements, maintenance of the buildings is a common expense borne separately by each phase of the condominium. Therefore, the owners of units outside of Phase 5 should not have been allowed to vote on this matter because it did not affect them. 3. The Association incorrectly noticed the meeting and vote of October 15, 2012 by citing to incorrect portions of the declaration; characterizing the porch enclosure as an alteration of the common elements rather than of a unit; and not informing the unit owners of the specific unit number about which their vote was being sought. 4. The Association has failed to take enforcement action against other non-conforming screen porch enclosures. 5. The Association failed to provide Petitioner with access to inspect the Declaration for Phase 5 and amendments thereto from September 26, 2012 until sometime after December 2, The Association failed to maintain copies of the complete declaration on the condominium property for unit owner inspection, as is required by section (12)(c), Florida Statutes. The petition requests an order granting the following relief: 1. Void the vote of October 15, 2012 to approve alteration of the common elements. 2. Require the owner of Unit 615A to remove the screen porch enclosure. 3

4 3. Award Petitioner $500 for the Association s failure to provide the amendments to the Declaration for Phase 5 within ten days of the request. With the exception of the Association s failure to provide timely access to the governing documents and its provision of notice and proper conduct of a vote, these matters do not constitute disputes over which the arbitrator has jurisdiction pursuant to section (1), Florida Statutes. The statute precludes jurisdiction over the Association s failure to enforce its governing documents against another unit owner. There are numerous cases holding that an arbitrator does not have jurisdiction over a case alleging the association s failure to properly enforce the provisions of the condominium documents against another unit owner. See, e.g., Troyan, et al. v. 736 Island Way Ass n, Inc., Arb. Case No , Final Order of Dismissal for Lack of Jurisdiction, (June 22, 2012)(Association s authority to allow the unit owners to alter the common element partition wall and other common elements in violation of the restrictions contained in the declaration is a controversy that does not qualify as dispute subject to arbitration); Adkins v. Bear s Paw Condo. I Ass n, Inc., Arb Case No , Final Order of Dismissal (June 24, 2004)(petition was dismissed that alleged the association failed to enforce the condominium documents against another unit owner who had constructed a fish pond and patio extension on the common elements); Wheeler v. Lighthouse Village Condo. Ass n, Inc., Arb. Case No , Final Order Dismissing Petition for Arbitration (July 25, 1996)(petition filed against association for failing to enforce the association s rules and regulations against the upstairs neighbors for installing tile flooring dismissed for lack of jurisdiction, citing to Rule 61B , Florida Administrative Code, subsection 4

5 (6), which requires dismissal of petitions alleging the failure of the association to enforce the condominium documents); Sailer v. Pelican Point of Sebastian II Condo. Ass n, Inc., Arb. Case No , Final Order of Dismissal (May 26, 2006)(citing Raymond v. Solamar Condo. Ass n, Arb. Case Number , Final Order of Dismissal (January 20, 2004)(arbitrator lacked jurisdiction over dispute between unit owners seeking enforcement of the condominium documents)(also citing Gordon v. Cypress Creek Villas of Coral Springs II Condo. Ass n, Inc., Arb. Case No , Final Order Dismissing Petition for Arbitration (June 4, 1999)(no jurisdiction over claim that association failed to enforce noise restrictions against owner of unit directly above petitioners unit because dispute was in essence between two neighboring unit owners and involved the failure of the association to enforce its documents). In addition to not being specifically identified as a dispute under Section (1), Florida Statutes, such cases primarily involve a disagreement between unit owners, which is clearly outside the jurisdiction of the arbitrator. See Rule 61B (2), Florida Administrative Code. Rule 61B (4), Florida Administrative Code, provides: (4) Where a controversy involves both matters eligible and ineligible for arbitration, the arbitrator shall determine by order whether the ineligible matters may properly be severed from the controversy so that the remaining eligible issues may be arbitrated. Arbitration cases have held that where some of the issues in the arbitration petition within the jurisdiction of the arbitrator pursuant to Section (1), Florida Statutes, are intertwined with issues that are not within the jurisdiction of the arbitrator, the petition for arbitration will be dismissed. See, e.g., Esch, et al. v. Wing South, Inc., Arb. Case No , Final Order of Dismissal (May 7, 2010) (where ineligible 5

6 breach of fiduciary duty by the board by allegedly failing to obtain competitive bids and approving work not in compliance with FAA standards intertwined with notice of meetings and inspection of official records, petition was dismissed); Cypress Chase Condo. C Ass n, Inc. v. Austin, et al., Arb. Case No , Order Dismissing Petition for Lack of Jurisdiction (Aug. 26, 1997) (where ineligible title issue intertwined with noise, unit condition and access issues, petition was dismissed). Although issues involving the adequacy of notice of meetings and proper conduct of voting are within the arbitrator s jurisdiction, the core issue (and reason for holding the vote) in the case at hand involves the Association s enforcement of the governing documents with regard to screen porch enclosures. The issues within the jurisdiction of the arbitrator are so intertwined with those issues which are not, that judicial economy requires that all of these issues be determined in a single forum. Given all of the foregoing, Petitioner may pursue these claims in a court of competent jurisdiction. For all of the above reasons, the disputes related to the screen porch enclosures, meetings and voting related to the screen porch enclosures, and proper enforcement of the governing documents regarding screen porch enclosures must be dismissed. Order Denying Motion to Dismiss Section (4)(b), Florida Statutes, requires that the petition recite and have attached thereto, supporting proof that the petitioner gave the respondent: 1. Advance written notice of the specific nature of the dispute; 2. A demand for relief, and a reasonable opportunity to comply or to provide the relief; and 3. Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute. 6

7 Section (4)(b), Florida Statutes, further provides that failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice. In its Motion to Dismiss, the Association argues that the only relief Petitioner requested in her pre-arbitration notice was that the Association respond to her letter or agree to engage in mediation. The Association asserts that it responded to Petitioner s request with a letter dated November 20, 2012, in which it provided answers to each of Petitioner s numbered questions. The Association claims that by so doing, it provided the relief that Petitioner asked for specifically, a response to her letter. This argument is without merit. In the first paragraph of Petitioner s pre-arbitration letter she makes clear that the relief she seeks is to void the owners vote conducted on October 15, 2012 due to the errors with the notification and proxy. She also makes clear that the reason she requests the Association s participation in mediation is to address the construction at 615A Fairmont, where the owner converted the screened porch into an enclosed room in violation of the Declaration. letter states: With regard to the official records issue, the November 14, 2012 pre-arbitration During my records review on September 26, 2012, I could not find any amendments to the Phase V Declaration, so it is unclear what documents the board has used to make its decision for the owners to vote to approve the modification. The attachments to the petition indicate that Petitioner informed the Board of Directors by on October 9, 2012, that when Petitioner went in again to review association records on October 3, 2012, the amendments to the Declaration for Phase 5 7

8 were still unavailable. Petitioner requested by the same that the missing documents be made available for inspection and review by October 18, A notation on the indicates that the documents were still unavailable on October 18, An attachment to the petition consisting of an to Maureen Reardon, dated December 2, 2012, indicates that Petitioner was apparently provided access to, and copies of, the amendments to the Declaration for Phase 5 sometime after December 2, 2012, upon payment of a $50.00 fee. Petitioner s pre-arbitration notice satisfies the requirements of section (4)(b), Florida Statutes, as to the sole remaining issue within the arbitrator s jurisdiction, that being the failure to grant timely access to the Association s governing documents. Therefore, based on the foregoing, it is ORDERED: 1. The Petitioner s claims involving screen porch enclosures, voting related to screen porch enclosures, and proper enforcement of the governing documents regarding screen porch enclosures are DISMISSED for lack of jurisdiction. Petitioner may seek relief in a court of competent jurisdiction as to these claims. 2. Respondent s Motion to Dismiss is DENIED. 3. Respondent shall file an answer to the petition within twenty (20) days of the date of this order. The answer shall be confined to the dispute involving failure to provide timely access to official records of the Association. 8

9 DONE AND ORDERED this 28 th day of February, 2013, at Tallahassee, Leon County, Florida. Copies provided by U.S. Mail to: Barbara M. Adams 3076 Eastland Blvd. #204 Clearwater, FL Petitioner Steven H. Mezer, Esq. BUSH ROSS, P.A. P.O. Box 3913 Tampa, FL Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Suite 16 Tallahassee, Florida Telephone (850) Facsimile (850)