STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Classic Towne Houses Condominium West, Inc., Petitioner, v. Case No. 2004-00-3548 Edwin L. Goldberg, Respondent. / SUMMARY FINAL ORDER This final order is entered pursuant to rule 61B-45.030, Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. PROCEDURAL HISTORY On January 23, 2004, Classic Towne Houses Condominium West, Inc. (petitioner/association) filed a petition for mandatory non-binding arbitration, naming Edwin L. Goldberg as the respondent/unit owner. In count I, the petition alleges that the unit owner constructed a storage shed as a permanent structure on the condominium s common elements or limited common elements without prior consent or approval of the board of directors, in violation of the declaration of condominium. The petition further alleges, in count II, that the respondent damaged the common elements by tearing up and flattening a hilly, open, common area for a soccer field and by re-landscaping the east entranceway, both without permission or consent of the board and in violation of 1
the association s governing documents. The respondent filed an answer in this matter on March 1, 2004, asserting defenses to the allegations contained in counts I and II of the association s petition. The parties responded to the arbitrator s order requiring supplemental information on March 25, 2004, April 14, 2004 and April 16, 2004. The parties further responded to the arbitrator s order of July 8, 2004 on July 19, 2004 and August 2, 2004. This order is entered after consideration of the complete record in the matter. FACTS The association has alleged that the respondent installed a storage shed on the condominium common elements without prior consent from the board of directors. The respondent admits to the installation of the shed, but asserts selective enforcement as a defense. In support thereof, the respondent cites examples of other storage sheds that have been erected by unit owners on the common elements without permission from the association. In response, the association maintains that the examples produced by the respondent are not comparable examples because his shed is larger in size, is a permanent structure as compared to the other temporary sheds and is the only shed anchored to the common elements. The association argues that selective enforcement has not been established because the examples cited by the respondent do not bear a sufficient similarity to his storage shed. In count II, the association alleges that the respondent damaged the common elements by tearing up and flattening a portion thereof for a soccer field and landscaping the east entranceway, both without permission from the board of directors. The respondent alleges that he received permission, by vote of the board members, to 2
landscape the entranceway and that the actions undertaken by him regarding the soccer field were necessary to remedy its dangerous and uneven terrain. In support of this defense, the respondent provided letters from a unit owner and former owner indicating that he received permission for the entranceway landscaping. However, the respondent claims that a fire destroyed numerous association records which prevents him from providing board meeting minutes corroborating the board vote that granted him permission to landscape the entranceway. CONCLUSIONS OF LAW Article XIV, entitled Common Elements, of the declaration of condominium, as amended, provides, in pertinent part: No alterations or additions to the common elements shall be made except upon the affirmative vote of 75% of the unit owners, Pursuant to article XIX, section 6, of the declaration: Unit owners, their families, guests, invitees, or lessees shall in no way deface or mar, or make any alteration, repair or replacement, or change, in or to the common elements or limited common elements, and shall be liable for damages therefore. The association alleges that the respondent has installed a storage shed on the common areas of the association without prior approval from the board of directors. In response, the respondent has asserted selective enforcement as a defense. Selective enforcement will only succeed if the failure of the board to enforce the documents in other instances bears sufficient similarity to the case at issue as to warrant the conclusion that to permit the enforcement in the instant case would be discriminatory, unfair, or unequal. Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. 3
Case No. 96-0384, Order Striking Certain Defenses (September 4, 1996). While the respondent cites examples of other unit owners who have been permitted to maintain storage sheds on the common elements without obtaining prior consent from the association, the association argues that these examples raised by the respondent are not adequate comparisons in that the sheds differ in size, portablility and building material. Upon review of the descriptions and photographs of the respondent s storage shed and the other sheds on the condominium property, it is clear that the respondent s shed is somewhat larger than the other sheds. However, the respondent s shed serves the same purpose as the other sheds and does not substantially differ in size, shape or function from those sheds. The storage sheds that the association has allowed other owners to maintain on the common elements range in height from two feet tall to six and a half feet tall and differ in building material, where the respondent s shed is nine and a half feet tall and composed of similar building materials. Clearly, the association has not enforced strict standards when it determines to allow certain sheds to remain on the association property. 1 None of the owners who erected the permitted sheds on the common elements did so with prior consent from the board of directors. Similarly, the respondent failed to obtain prior permission from the board before installing his shed. Based on the foregoing, the arbitrator concludes that the association s demands that the respondent remove his storage shed while allowing other owners to maintain similar sheds, is unfair and discriminatory treatment on behalf of the association and cannot be tolerated. The relief requested by the association concerning this issue is denied. The respondent is permitted to maintain his storage shed in its current condition. Any 1 According to the association, no unit owners have been sent violation letters for their storage sheds except for the respondent. 4
substantial changes to the respondent s shed may, however, be grounds to initiate another arbitration proceeding. 2 Regarding count II, the association alleges that the respondent damaged the common elements by tearing up and flattening a portion thereof for a soccer field and by landscaping the east entranceway, both without permission from the board of directors. Even though the respondent claims he received permission from the board to undertake these activities, he has been unable to provide sufficient documentation to support this allegation. The only meeting minutes produced by the respondent demonstrate that he was a member of the landscaping/grounds committee (minutes of February 5, 2003) and that a motion for the respondent to re-sod the entranceway was defeated and that a motion for the respondent to restore the grass in the soccer field was passed (minutes March 6, 2003). 3 However, the minutes do not corroborate that the respondent obtained permission from the board or from 75% of the unit owners to landscape the east entranceway or level the soccer field. Accordingly, the respondent s actions of flattening the soccer field and landscaping the east entranceway were in violation of the condominium documents as he failed to obtain proper permission from the board of directors prior to initiating such actions. The respondent shall remit payment for costs incurred by the association in replacing the sod used for the entranceway and soccer field as evidenced by the Pan American Landscaping invoice. Based on the foregoing, it is ORDERED: The relief requested by the association regarding count I of the petition is hereby denied. The respondent shall provide payment for the Pan American Landscaping 2 This order does not address whether a building permit is required for the respondent s storage shed. 3 It is noted that the association contests the accuracy of meeting minutes based on the respondent 5
invoice dated July 21, 2003, in the amount of $370.00. 4 The respondent shall fully comply with article XIV and article XIX, section 6, of the declaration of condominium in the future. DONE AND ORDERED this 14 th day of September 2004, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 14 th day of September 2004: Randall K. Roger, Esq. Bruce A. Harris, Esq. Randall K. Roger & Associates, P.A. 621 N.W. 53 rd Street Suite 300 Boca Raton, Florida 33487 Edwin L. Goldberg 4920 Sheridan Street Hollywood, Florida 33021 recording the minutes as the secretary of the board of directors. 4 As the association failed to specify the amount or justification for late fees and interest in its petition, this relief is not awarded. 6
Melissa Mnookin, Arbitrator Right to Appeal As provided by section 718.1255, F.S., a party which is adversely affected by this final order may appeal by filing a petition 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. Attorney s Fees As provided by section 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 of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 7