STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMSHARES AND MOBILE HOMES FINAL ORDER

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMSHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Lucia A. DeFilippo, Ellen L. Fenton, Susan Kilpatrick, Maritza Kruchko, Crystal Aponte, John Monte, Armondo Ciraco, Anne Chaumont, Petitioners, v. Sandalwood Condominium Association at Wildwood, Inc., Case No Respondent. / FINAL ORDER ISSUES FOR RESOLUTION I. Did the Association violate the records inspection / request provision found at Florida Statute (12) (2010)? II. Did the Association materially alter any portion of the common elements without obtaining the approval of 75% of the total voting interests of the association? Procedural History On July 8, 2010, Lucia DeFilippo filed a Petition filed a Petition for Arbitration stating she represented 10 Unit Owners; however, she had not filed a Qualified Representative Application, and there was no indication that the named individuals had agreed to have Ms. DeFilippo represent them. The Petitioner filed additional documentation to resolve these matters, and it was determined that Ms. DeFilippo was the unit owner representative for the 7 individuals identified as Petitioners in the style of the case. The Petition asserted the following claims against Sandalwood Condominium Association at Wildwood, Inc., ( Association ): 1

2 1. The Association violated the condominium records law found at Florida Statute (12) (2010) by refusing to A. Provide copies of Association records to various unit owners; or, B. Allow such owners the opportunity to look at and copy the requested records. 2. The Association materially altered common elements of Association property, (the library) without 75% approval of the unit owners, as mandated by Florida Statute (2) (2010); and, 3. The Association improperly began locking A. The entrance gate to the tennis courts; B. The door to the recreation building during business hours, thereby prohibiting unit owners access to the building. The Association answered the Petition on September 21, 2010, asserting the following defenses: 1. There was no records violation. The Association received only one request for records, which was dated June 23, The Association did not respond to the request because it could not determine what records were being requested or who was making the request. 2. There was no material alteration of the common element library. The Association s Board of Directors approved the action of changing the library into an office for the Board President for the following reasons: A. The Board President needed more office space to accommodate two litigation files; and, B. The books that had been in the library were moved to the meeting room, so no harm was done by converting the library into the President s office. 3. The Association began locking the outside door to the community room during regular business hours due to recent safety concerns. A case management conference was held on October 13,

3 On December 9, 2010, the Final Hearing was held in the Association s meeting room. The parties presented evidence in the form of documents and witness testimony. At the conclusion of the hearing, after the documents offered into evidence were reviewed by all parties and the arbitrator. The Association s counsel filed a brief on December 22, 2010, which has been reviewed. The Unit Owner Representative waived her right to file a proposed order or a legal memorandum. The Association s counsel claims she was surprised by the Petitioner s exhibits and witnesses, because the Petitioner did not serve her with a copy of her exhibits or witness list, as required by the Scheduling Order of October 26, Each party s list of witnesses and exhibits was ordered to be filed on or before November 17, At no time prior to the hearing date of December 9, 2010, did the Association s counsel complain about not having received Petitioner s witness or exhibit list. Nor did she take the opportunity to contact Petitioner to inquire about the matter. When the Association objected to the admission of any of Petitioner s evidence at the hearing on December 9, 2010, counsel was accorded additional time to review such documents and confer with her client, prior to proceeding. Counsel did not 1. Object to this procedure at any time; 2. Renew her initial objection; or, 3. Demonstrate any prejudice to her client as a result of this procedure. This Order is entered after considering the complete record. APPEARANCES For the Petitioner: Lucia A. DeFilippo, Unit Owner Representative for Ellen L. Fenton, Susan Kilpatrick, Maritza Kruchko, Crystal Aponte, John Monte, Armondo Ciraco, Anne Chaumont 3

4 For the Association: Judit Karpati, Esq. Judit Karpati, P.A NE 2 nd Street, Suite 6 Ocala, FL EVIDENCE I. WITNESSES - The following witnesses testified: 1. Mr. Ronald Burroughs, Unit Owner, Board President and Treasurer; 2. Ms. Lucia DeFilippo, Unit Owner; 3. Ms. Susan Kilpatrick, former Board member (2009), Unit Owner; 4. Mr. Walter Kates, Unit Owner; 5. Ms. Anne Chaumont, Unit Owner; 6. Ms. Mary DeBose, Unit Owner, Board member (1995, 1997, 2010); 7. Ms. Crystal Aponte, Unit Owner; 8. Mr. Christopher Polermo, tenant; 8. Ms. Rhodene Elliott; Unit Owner, Secretary to the Board; 9. Ms. Quenetta Holt, Unit Owner, Admin. Assistant (since 2007); 10. Ms. Ellen Fenton, Unit Owner; 11. Mr. Keith Coleman, Unit Owner and Board Vice President; 12. Ms. Marie Coleman, Unit Owner; 13. Mr. Melvin Blue; Unit Owner, Board Maintenance Worker. II. DOCUMENTS - The parties offered 44 documents into evidence, and 41 of them were admitted. One of the exhibits offered by the Respondent was a photocopy of Florida Statute (2010). Official notice was taken of the statute, rendering unnecessary the photocopy of said statute. Exhibit 1 Letter dated April 21, 2010, from Ron Burroughs to Lucia DeFilippo. (Offered by R. - Admitted) Exhibit 2 Letter dated April 8, 2010, from Ron Burroughs to Lucia DeFilippo. (Offered by R - Admitted) Exhibit 3 Unsigned letter dated February 12, 2010, from Lucia DeFilippo to Ms. Holt. (Offered by R - Admitted) 4

5 Exhibit 4 Unsigned letter dated April 13, 2010, from Lucia DeFilippo to Sandalwood Condominium Association Board. (Offered by P - Admitted) Exhibit 5 Letter dated August 11, 2010, from Ron Burroughs to Lucia DeFilippo. (Offered by P Admitted) Exhibit 6 Letter dated January 4, 2009, from Walter Kates to Ron Burroughs. (Offered by P Admitted) Exhibit 7 Unsigned letter dated October 29, 2009, from Walter Kates to Sandalwood Board of Directors. (Offered by P Admitted) Exhibit 8 Unsigned letter dated August 29, 2009, from Walter Kates to Ron Burroughs. (Offered by P Admitted) Exhibit 9 Letter dated May 13, and May 18, 2010, from Sandalwood Board of Directors and Ron Burroughs, respectively, to Walter Kates. (Offered by P Admitted) Exhibit 10 Unsigned letter dated May 13, 2010, from Sandalwood Board of Directors to Walter Kates. (Offered by P Admitted) Exhibit 11 Green card evidencing receipt of certified mail on (Offered by P Not Admitted) Exhibit 12 Green card evidencing receipt of certified mail on (Offered by P Not Admitted) Exhibit 13 Green card evidencing receipt of certified mail on (Offered by P Not Admitted) Exhibit 14 Letter dated September 4, 2009, from Ron Burroughs to Susan Kilpatrick. (Offered by P Admitted) Exhibit 15 Prospectus for Sandalwood Condominium. (Offered by R Admitted) Exhibit 16 Declaration of Condominium, Articles of Incorporation, and By-Laws. (Offered by R Admitted) Exhibit 17 Map and aerial photograph of Association property. (Offered by R Admitted) 5

6 Exhibits Photographs of Association Property (Offered by R Admitted) Exhibit 22 Letter dated April 8, 2009, from Ron Burroughs to Unit Owners. (Offered by R - Admitted) Exhibits Photographs of Association Property (Offered by R Admitted) Exhibit 25 Unsigned letter dated June 10, 2009, from Ron Burroughs to Chris & Christal [sic]. (Offered by R - Admitted) Exhibit 26 Undated, unsigned letter from Qwennetta Holt to Christal [sic] and Chris. (Offered by R - Admitted) Exhibit 27 Unsigned letter dated April 21, 2010, from Ron Burroughs to Lucia DeFilippo. (Offered by R - Admitted) Exhibit 28 Unsigned letter dated October 23, 2009, from Ron Burroughs to Lucia DeFilippo (Offered by R - Admitted) Exhibit 29 Unsigned letter dated June 17, 2010, from Sandalwood Condominium Association Board of Administration to Lucia DeFilippo (Offered by R - Admitted) Exhibit 30 Letter dated October 6, 2010, from Mary Debose to Whom It May Concern. (Offered by R - Admitted) Exhibit 31 Letter dated October 6, 2010, from Melissa Casson to Whom It May Concern (Offered by R - Admitted) Exhibit 32 Unsigned letter dated February 12, 2010, from Lucia DeFilippo to Ms. Holt (Offered by P - Admitted) Exhibit 33 Unsigned letter dated April 7, 2010, from Lucia DeFilippo to Sandalwood Association (Offered by R - Admitted) Exhibit 34 Letter dated June 25, 2009, from Ron Burroughs to all Sandalwood Residents (Offered by R - Admitted) Exhibit 35 Letter dated October 14, 2009, from Ron Burroughs to all Sandalwood Residents (Offered by R - Admitted) Exhibit page Composite evidencing alleged security issues at Sandalwood Association. (Offered by R Admitted) 6

7 Exhibit 37 Composite of 3 documents from Ellen Fenton. The first document is an undated, signed agreement to obtain a key to the work-out room; the second document is a letter dated November 8, 2010, unaddressed, complaining about the locked front door, tennis court, and work-out room; also complaining about the loss of the library; the third document is a letter dated May 16, 2010, to the Florida Status Board. (Offered by P - Admitted) Exhibit 38 Letter dated November 6, 2010, from Thomas Hense to whoever it may concern [sic]. (Offered by P - Admitted) Exhibit 39 Letter dated May 5, 2010, from Concerned Members of Sandalwood Condominiums to Ron Burroughs (Offered by P Admitted) Exhibit 40 Letter dated March 12, 2008, from Quinetta Holt to all Sandalwood Residents. (Offered by P - Admitted) Exhibit 41 Electronic mail dated August 10, 2009, from Walter Kates to Ron Burroughs and Sandalwood Condominium, and an accompanying electronic mail to the Florida Department of Business and Professional Regulation, dated January 29, (Offered by P - Admitted) Exhibit 42 Letter dated September 15, 2010, from Ron Burroughs to all Sandalwood Residents (Offered by P - Admitted) Exhibit 43 Appendix A to the Prospectus of the Condominium Association (Offered by P - Admitted) Exhibit 44 Letter dated June 25, 2010, from Ron Burroughs to all Sandalwood Residents (Offered by R - Admitted) FINDINGS OF FACT 1. Lucia DeFilippo is the Unit Owner Representative for the 7 additionallynamed Petitioners herein. All such individuals are members of the Association by virtue of owning a condominium unit. 2. The Association is the corporate entity that manages the named residential condominium in Sumpter County, Florida. 7

8 Facts Pertaining to Issue I Records Violation 3. On April 7, 2010, Unit Owner Representative Lucia DeFilippo wrote a letter to the Sandalwood Association requesting copies of letters in her file; in the alternative, she said she would come to the office to inspect the records and obtain copies of the letters. 4. The Association keeps a file on each unit owner, which file includes all correspondence to and from the unit owner. 5. On April 13, 2010, Unit Owner Representative Lucia DeFilippo again wrote to the Sandalwood Association Board requesting copies of letters A. Sent to her by Board President Ron Burroughs; and, B. Authorized to be sent to her by Ron Burroughs. 6. On April 21, 2010, Board President and Treasurer Ronald Burroughs, wrote Ms. DeFilippo a letter on behalf of the Association stating that she would not receive the copies she had requested because A. Such records belong to the Board, so she cannot have copies of them; and, B. Ms. DeFilippo already has copies of these letters, so there is no reason for her to get another copy from the Board. 7. In early-to-mid 2009, unit owner Kilpatrick, while serving as a Board Member, provided Board President Burroughs various records she had obtained from an outside source that would be helpful to operating the Association. 8. In September of 2009, Ms. Kilpatrick made a written request to the Association for the return of the records she had given Mr. Burroughs. 8

9 9. The Association received Ms. Kilpatrick s request for the return of her records, but neither returned the records nor allowed her to see them. 10. Unit Owner Walter Kates, on 3 occasions in 2009, made a written request to the Association to look at or obtain a copy of Association records, as follows: A. On January 4, 2010 Kates wrote President Borroughs requesting to review a contract signed by the Association to paint condominium buildings; B. August 29, 2010 Kates wrote President Burroughs requesting the letter the Board Members were alleged to have signed giving their approval for Burroughs to turn the library into an office for himself; and, C. On October 29, 2010 Kates wrote the Association s Board of Directors asking to review all Board records associated with the hiring a deputy sheriff to attend the Board Meeting on October 22, 2009; and, 11. President Burroughs acknowledged having received the 3 records requests, but he did not respond to them or allow Mr. Kates to review the records requested. Facts Pertaining to Issue II Conversion of Common Elements 12. The Prospectus for the Association contains, at Exhibit A to the Prospectus, a list of the condominiums common elements; Exhibit A also describes the dimensions of those common elements. According to this Exhibit to the Prospectus, the recreation building is a common element facility. The recreation building houses the office for Board staff and various common elements, including A. The library; and, B. The meeting and card room. 9

10 The Prospectus also describes common elements not contained within the recreation building, such as the tennis court and the swimming pool. 13. In 2009, prior to June of that year, Mr. Burroughs converted the common element library room and adjacent sun deck into his personal office. Burroughs effected this change by walling off the library, which had been previously un-walled, and installing a door with a lock in the new walls. Only Board Members have a key to access this common element space. 14. Prior to Mr. Burroughs converting the library to a room for his use, unit owners and residents used the room not only to read, but also for social gatherings. 15. The size of the library room Mr. Burroughs converted to his personal office is 26, 4 long by 17, 8 wide. The room has a large, stone fireplace on the south wall and large, sliding-glass doors around the southwest corner of the room leading out to the sun deck. The sun deck, which is accessible only from the library, is 175 square feet of common element area that overlooks the pool. The floor in the library is carpeted, and there is a significant amount of natural light flowing into the room because of the large, sliding glass doors. 16. By contrast, the community and card room situated to the north of the library is below-ground, windowless, and uncarpeted. 17. It is undisputed that A. The library and sun deck are common elements; and, B. At no time prior or subsequent to Burroughs conversion of the library and sun deck to his personal office did the Association (i) (ii) Obtain the approval of 75% of the condominium voting interests to make such alterations; or, Call for a vote on the proposal. 10

11 18. There was no Board Meeting to discuss and vote on the conversion of the library to Mr. Burroughs office. Mr. Burroughs testified that he telephoned individual Board members to ask if such he or she would agree to his walling in the library to become his office. 19. Mr. Burroughs, in defense of his actions to convert the common elements to his office, asserts as follows: A. The Board approved his actions; B. Only a few unit owners were using the library on a regular basis; C. The books that had been located in the library room were moved to the community room; and, D. He needed more office space due to the number of Association litigation records. 20. The litigation records to which Mr. Burroughs referred are 2 cases in which the Association was a party. One case was resolved about 18 months ago, and no appeal is pending. The second case was resolved several months ago, and no appeal is pending. 21. The Association s Board Presidents prior to Mr. Burroughs shared the staff office in the recreation room with the Administrative Assistant. This office measures 19, 4 long by 13, 6 wide. This office space easily accommodates more than 1 desk, as well as several filing cabinets and book shelves. Currently, only the Administrative Assistant is located in this office space. 22. Beginning in June of 2009, Mr. Burroughs, in his capacity as Board President, began locking the front door to the recreation building during business hours 11

12 (9 a.m. 2 p.m., Monday through Friday). The stated reason for locking the door to the recreation building was for recent safety concerns. 23. Prior to June of 2009, the front door to the recreation building was open during business hours, and locked during non-business hours. Every unit owner had a key to access the recreation building during non-business hours when it was locked. 24. When Mr. Burroughs began locking the front door during business hours, he changed the door lock so that unit owners could not independently enter the building at any time. 25. Under the locked-door policy, during business hours, unit owners are required to ring a doorbell and wait for someone to answer, if anyone is there. Alternatively, the unit owner can call the staff office, which is located inside the recreation building, and make an appointment to gain entry to the recreation building. 26. After business hours, a unit owner must make an appointment with a Board member to let him or her into the building. The appointment must be made the day before entry is needed. 27. Unit owners are often unable to gain entry to their recreation building during business hours because no one is there to answer the doorbell, or the people inside will not come to the door. The mail carrier has been kept from accessing the building on various occasions to deliver mail to unit owners and residents. 28. Although Mr. Burroughs justifies his decision to lock the door to the recreation building for safety reasons, he could not recount a single incident involving a safety problem prior to the time he decided to change the lock on the recreation 12

13 building. Nor could Mr. Burroughs recount any instance when the locked door prevented what would have been an unsafe situation. 29. Quinetta Holt, the Administrative Assistant for the Association, recounted a time in 2008 when an upset unit owner came into her office, but would not calm down. Ms. Holt telephoned the sheriff, who sent a deputy to the location. After taking the pertinent information from both individuals, the deputy sheriff left without taking any action because no crime had been committed. 30. Another incident described by Ms. Holt occurred after the lock was put on the door. She answered the doorbell, and the person who came into her office became irate about Association business. Ms. Holt again telephoned the sheriff, but he refused to send a deputy because no crime had been committed. 31. It is undisputed that A. The recreation building is a common element; and, B. At no time prior or subsequent to Burroughs locking the unit owners out of their recreation building did 75% of the condominium voting interests approve of such action; in fact, the unit owners were not allowed to vote on the matter at any time. 32. There was no Board meeting to discuss or vote on locking the recreation building door during business hours, changing the lock, or requiring advance appointments to gain entrance to the building during non-business hours. 33. There is no documentary or testimonial evidence to support a finding that that the safety of individuals inside the recreation building during business hours was in any way jeopardized by having the door unlocked and allowing unit owners to keep a key to the door for after-hours access. 13

14 34. The Petition complains about the Board also having locked access to the tennis courts in 2009, completely prohibiting unit owners from using them at any time. Mr. Walter Kates testified briefly about the locking of the tennis courts, and his testimony was unrebutted. CONCLUSIONS OF LAW The Division has jurisdiction to determine A. The propriety of the records request denials; 1 and, B. The authority of the board of directors to alter a common element. 2 The Unit Owner Representative, by virtue of her ownership of a unit at the condominium, has standing to challenge the Board s decisions to A. Deny records requests made by her and those she represents; and, B. To alter the common elements of the library, sun deck, and prohibit access to the recreation building and the tennis courts without 75% unit owner approval. Issue I Records Request Violation The official records of an association are open to inspection by any association member or authorized representative of such member at all reasonable times. 3 right to inspect such records includes the right to make or obtain copies. 4 The The Association may make reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. 5 The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable 1 Sec , Fla. Stat. (2010). 2 Id. 3 Fla. Stat (12)(c) (2010). 4 Id. 5 Id. 14

15 presumption that the association willfully failed to comply with this paragraph. 6 A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the Association s willful non-compliance with this requirement. 7 The minimum damages are $50.00 per day, up to 10 days, for a total of $ maximum per violation. 8 Although the statute authorizes an association to adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying of official records, such restrictions cannot be so burdensome as to deny reasonable access to such records. 9 In this case, the Association admitted it had not provided a response to the 1. Two records requests made by Ms. DeFilippo; 2. Records request made by Ms. Kilpatrick; and, 3. Three records requests made by Mr. Kates. Ms. DeFilippo The two requests made by Ms. DeFilippo requested the same records letters sent to or from her to the Association. Mr. Burroughs testified at the final hearing that he did not respond to either of Ms. DeFilippo s records requests because he did not understand what records she was requesting. However, the letter Mr. Burroughs wrote Ms. DeFilippo on April 21, 2010, in the second paragraph, states as follows: 6 Id. 7 Id. 8 Id. 9 Wanda Dipaola Steven Rinko Gen. P ship v. Beach Terrace Ass n, No , 2008 WL (Fla. DBPR Arb.) (Feb. 2008); Fla. Stat (12)(c) (2010). 15

16 Again, we remind you that by your own admission, you have copies of all the letters you are requesting. It is not our problem that you chose to write on your copies. Copies of the letters to the Board from you and all of the Board s responses back to you are in the Board s file, and not in your file, therefore, they are property of the Board. Our copies have all been written on also, and therefore, we cannot give you copies of those letters. Coming to the office to get copies of these letters will not do any good, because you already have them. It is clear from the language in the letter that the Board President knew exactly what records Ms. DeFilippo was requesting and that he had no intention of providing her with a copy of them. Whether Ms. DeFilippo already had copies of what she was requesting is irrelevant to the requirements of the statute. She is entitled to look at and make copies of everything contained in her file. Nor is it a defense to the Association that her letters may be located in a file that was characterized as a Board file. The Board of Directors for the Association is no different from the Association in terms of the records that are kept. All records held by the Association, whether delineated as Board records or Association records are subject to the requirements of Florida Statute (12)(c) (2010). The only exception that will allow an association to not disclose records to unit owners are the categories listed in Florida Statute (12)(c)(1-7) (2010). Those exceptions include records A. Covered by the attorney/client privilege; B. Relating to the sale, lease, or other transfer of a unit; C. Containing private information in personnel records; D. Of medical treatment for unit owners; E. Containing personal identifying information of unit owners; 16

17 F. Containing electronic security information; or, G. Relating to software and operating system information used by the Association. The litigation records kept in the Board President s office relate to concluded litigation. Moreover, many of those records were filed in court, making them pubic documents. There is no blanket attorney/client privilege that would allow the Board President to prevent unit owners from looking at the overwhelming majority of the records he holds in the library. Mr. Burroughs was unable to articulate why the privilege would apply to any given document. Nor did the Association assert any other basis upon which it the records in the library should not be accessible to unit owners. The failure of the Association to timely respond to Ms. DeFilippo s records request created a rebuttable presumption that the Association willfully refused to comply with the statutory requirements for access to its records. The Association has not rebutted this presumption, which entitles Ms. DeFilippo to payment of $ in damages from the Association. Ms. Kilpatrick With regard to the records violation asserted by Ms. Kilpatrick, the Association acknowledged its failure to comply with the records statute, and the parties settled this violation by allowing Ms. Kilpatrick to review all the records of the Association that were located in Mr. Burroughs office on December 9, The records review was ordered to be done on December 15, 2010, between 10 a.m. and 2 p.m. This settlement is embodied within an Order issued on December 10, 2010 to clarify the terms the parties agreed to. In light of the parties settlement of this matter, it is not necessary to determine if the records requested by Ms. Kilpatrick had become Board 17

18 records at the time she provided them to Mr. Borroughs, or if they remained her records and were simply loaned to the Association. Mr. Kates With regard to records violations asserted by Mr. Kates, the Association acknowledged at the hearing that it had not complied with the requirements of the records statute relative to Mr. Kates 3 requests. However, Mr. Kates is not represented in this action by Ms. DeFilippo, nor is he a named Petitioner. Accordingly, he cannot be granted relief in this action because he is not a party. Issue II Material Alteration to Common Elements Library and Sun Deck Section (2)(a), Florida Statutes (2010) states, in pertinent part Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property except in a manner provided in the declaration as originally recorded or as amended under the procedure provided therein.... If the declaration as originally recorded or therein amended... does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions.... The Association s Declaration is silent as to the manner in which the Association can make material alterations to common elements. Therefore, the statutory requirement for a 75 percent approval of the total voting interests in the Association is applicable. The first question to resolve is whether there was a material alteration made to the library and sun deck. A material alteration is one that palpably or perceptively varies or changes the form, shape, elements, or specifications of a building from its 18

19 original design or plan, or existing condition, in such a matter as to in such a manner as to appreciably affect or influence its function, use or appearance. 10 In light of this statute and case law, the question is Did Mr. Burroughs conversion of the library and sun deck change the building from its original design or plan, or existing condition, and thereby appreciable affecting its function, use, or appearance? It is undisputed that Mr. Burroughs unilaterally converted the use of the library and sun deck to his own personal office, changing entirely the character of the room, and excluding the use of it from the very people who own it and pay for it. Without a doubt, the conversion of the library and sun deck to an office for a Board member was a material alteration of the common element property. There was no vote by the unit owners as to Mr. Burroughs actions. Accordingly, his actions were not approved by the requisite 75% of the voting interests. The Association argues that under Florida Statute (1) (2010), and the Association s By-Laws, at Paragraph 2.058, the conversion of the library and sun deck to a board member s office is permissible because the conversion is nothing more than a reasonable rule or regulation that was adopted by the Board for the use of this common element. This argument is without merit. The entire character of the library and sun deck was changed when Mr. Burroughs walled off the library and sun deck for his personal use. The Board did not even have a meeting on the matter, much less enact a rule to regulate the use of the common element. 10 George v. Beach Club Villas Condo. Ass n, 833 So. 2d 816, 819 (Fla. 3 rd DCA 2002) citing Sterling Village Condo., Inc., v. Breitenback, 251 So. 2d 685, 685 (Fla. 4 th DCA 1971). 19

20 The actions of the Association in walling off the library and converting that space and the space of the sun deck to an office for a Board member is a material alteration that was not approved by 75% of the condominium s voting interests. Front Door to the Recreation Building Left for consideration is whether the locking of the front door to the recreation building, which is a common element, constitutes a material alteration of that common element without the requisite 75% approval. The recreation building is itself a common element. Moreover, everything inside the building is common element property, including the designated office space for the Board Staff, the library, and meeting room. The recreation building, prior to June 25, 2009, was open and accessible during business hours, and unit owners could easily access it during non-business hours with a key. Since June 25, 2009, however, the Board President made the building off-limits for unit owners by installing a different lock on the front door, without providing a key to unit owners. The theory of the Association that unit owners can access the building during business hours by ringing a doorbell is rarely true. Either no one is there to answer the doorbell, or the people inside refuse to allow the unit owner into the building. Not even the mail carrier can consistently deliver mail to the unit owners because no one will answer the bell. 20

21 The locked recreation building cannot be used in the same way it was before because it is not accessible. Therefore, this change is also a material alteration of the common elements, 11 and it was not approved by at least 75% of the unit owners. The stated reason for the change, safety concerns, is not supported by any evidence whatsoever. Moreover, the Board of Directors did not, at any meeting, approve such a change for any safety reasons. So, it is not a rule. Even if it were a rule that had been adopted by the Board, it is not reasonable, in light of the absence of evidence for safety concerns. Tennis Courts Unit Owners Walter Cates and Crystal Aponte testified that the Board President locked entry to the fenced-in tennis courts in 2009 without any reason. Several exhibits also state this fact, which is not disputed by the Association. Nor did the Association articulate any reason given for having done so. There was no vote by unit owners to determine if the tennis courts should be locked; therefore the Association did not have a 75% approval of the voting interests to lock the fence surrounding the tennis courts and block access to them. The Association s actions prevent the unit owners from using the tennis courts at any time. The absence of a 75% approval by the Association s voting interests for this action constitutes a material alteration of the common elements. Based upon the foregoing, IT IS ORDERED: A. The Association, having violated the records request provision found at Florida Statute (12) (2010) with respect to 2 requests made by Ms. DeFilippo, is to pay her the sum of $ in damages; 11 See Ladolcetta v. Carlton Condo. Ass n, Inc., No , 1995 WL (Fla. DBPR Arb) (April 24, 1995). 21

22 B. The Association made material alterations without the requisite approval to the following common elements: (i) (ii) (iii) The library and adjacent sun deck; The recreation building; and, The tennis courts. C. On or before January 14, 2011, the association is to begin restoring the common elements referenced in subparagraph (B) above, to the condition they were in prior to the material alteration. The restoration work of those common elements is to be completed on or before February 15, DONE AND ORDERED this 23 rd day of December 2010, at Tallahassee, Leon County, Florida. Shirley J. Whitsitt, Arbitrator Dept. Bus. and Prof. Reg., Arbitration Section 1940 North Monroe Street Tallahassee, Florida Fax: (850) 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 22

23 CERTIFICATE OF SERVICE A true and correct copy of the foregoing final order was mailed by U.S. mail, postage prepaid, this 23 rd day of December 2010, by regular mail, postage pre-paid, to: Lucia DeFilippo, Unit Owner Representative Sandalwood Drive Wildwood, FL Judit Karpati, Esq. Judit Karpati, P.A NE 2 nd Street, Suite 6 Ocala, FL Shirley J. Whitsitt, Arbitrator 23