STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION William J. Halley, III, Petitioner, v. Case No. 2004-03-6716 Park Lake Condominium Association, Inc., Respondent. / FINAL ORDER DISMISSING PETITION Comes now, the undersigned arbitrator, and issues this final order as follows: Mr. Halley filed his petition in this matter on July 9, 2004. The petition contains 5 counts. The petitioner alleges that the association materially altered the common elements without an advance vote of the membership. Count 1 alleges that the degree of fire resistivity has been altered by penetration into certain fire break walls in the garage and various other locations. Count II alleges that cables providing television service to the units have been stripped of their protective conduit and that such removal has resulted in a material alteration. Count III alleges that the association has selectively enforced the washer and dryer restrictions and that by allowing certain owners to have laundry facilities, the association has allowed owners to alter the common elements. Count IV states that structural concrete columns were installed in the garage during a repair to the parking deck. Count V alleges that the association installed an internet tower on top of the building without an advance owner vote. 1
In the course of the proceeding, the association conducted a membership vote on August 12, 2004, at which over 75% of the owners voted in favor of approving any and all material changes done by the board as of the date of the vote. There are 170 units in the condominium, and owners of 134 units approved the changes. Petitioner challenges the vote by suggesting that the membership had no idea what they were voting on. The following is the question which the owners voted on: Do you approve of and ratify all changes, additions and modifications made by the Association to the Common Elements and Association property such that you approve of the condition of the Common Elements and Association Property as same exist or will exist as of the date of the meeting at which this question will be considered? While it would have been a better practice to specifically detail all the known material changes being approved, and while hopefully the association will adopt that type of approach in the future, there is no evidence that the membership was confused or uncertain on the items covered by the blanket ratification effort. The membership is or should be aware of the various lawsuits existing involving the association, and the arbitrator will not assume that the membership was ignorant or uninformed concerning a matter that they specifically voted on and approved. As was stated in Board of Directors of Driftwood Sands Condominium Association, Inc. v. Cousins and Other Unit Owners executing the Recall Agreement, Arb. Case No. 94-0422, Summary Final Order Certifying the Recall (October 17, 1994): As in the greater democratic society, the right to vote carries with it the corresponding duty to be informed about the issues and candidates. Each unit owner has the responsibility to discover the facts and vote intelligently. If the unit owner shirks that responsibility, that unit owner as well as others may suffer. Nevertheless, the board has neither the responsibility nor the authority to ignore a vote 2
because it believes the vote was based on misinformation.indeed, if the dissemination of misleading or deceptive information were sufficient grounds to invalidate an election, we would have had few, if any, valid elections in this country. Thus, the petitioner s assumption that the owners were ignorant of the substance of their vote is not justified and not supported in the case law. Accordingly, the arbitrator rules that the ratification vote was effective in providing owner approval to these changes. As these changes were approved by the membership, the petition must be dismissed as moot. If a party files a motion for prevailing party costs and attorney s fees, it will have to be decided in that proceeding whether the changes were material alterations to the common elements for which an owner vote was required. Count I involving penetration into fire breaks will require testimony. Count II concerning television cables will require testimony. Count III, alleging selective enforcement, is dismissed. Selective enforcement is not a cause of action but is a defense to an action. Additionally, by seeking to add to the petition alterations performed by third person unit owners, the petitioner is essentially setting forth a unit owner versus unit owner dispute. Arbitration petitions filed pursuant to s. 718.1255, Florida Statutes, can only involve disputes between an association and an owner. Count IV will require testimony but appears to come within the maintenance exception to the vote ordinarily required for material alterations. Count V concerns the installation of a cell tower atop the condominium building. Prior arbitration decisions have recognized that the installation of antennae and cell towers constitute a material change to the common elements for which an owner vote is required. 3
The petition also alleges that these various changes were accomplished without building permits and in some cases in violation of local building codes. In this context, these allegations suggest a breach of fiduciary duty over which the arbitrator lacks jurisdiction. Accordingly, these allegations are dismissed and may be filed as appropriate in a court of competent jurisdiction. WHEREFORE, the petition for arbitration is dismissed as moot. DONE AND ORDERED this 22nd day of July, 2005, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre Tallahassee, Florida 32399-1029 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 22rd day of July, 2005: John A. Leklem, Esquire 5151 Adanson St., Ste. 98 Orlando, Florida 32804 James E. Olsen, Esquire Wean & Malchow, P.A. 464 E. Colonial Drive Orlando, Florida 32803 Karl M. Scheuerman, Arbitrator 4
Right to Appeal As provided by s. 718.1255, F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees As provided by s. 718.1255, 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-45.048, 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-45.048, F.A.C. The filing of an appeal by trial de novo of this final order tolls the time for the filing of a motion seeking prevailing party costs and attorney s fees until 45 days following the conclusion of the de novo appeal proceeding and any subsequent appeal. 5