STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE MOORINGS OF CAPE CORAL CONDOMINIUM ASSOCIATION, INC., v. Petitioner, Case No. 2016-01-2825 DENNIS DIVICO, Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On March 3, 2016, The Moorings of Cape Coral Condominium Association, Inc. (the Association) filed a petition for arbitration against Respondent, Dennis Divico, seeking an order requiring Respondent to bring his front door in compliance with the Declaration of Condominium and to pay the cost of the replacement or the reinstallation of an approved door to. An Order Requiring Service on Respondent was entered on April 21, 2016. On June 20, 2016, a default was entered against Respondent which was set aside on August 12, 2016. On August 15, 2016, Respondent filed a pleading that the undersigned treated as an answer and on August 23, 2016, Respondent, pursuant to an order, filed color photographs of his front door and others in his building. Findings of Facts 1. The Moorings of Cape Coral Condominium Association, Inc. (the Association), is
the governing body of the Association with the responsibility to handle the day-today business of the condominium and to maintain its property. 2. Respondent owns unit 104 and is thereby a member of the Association. 3. Respondent by taking title to his unit agreed to and became bound by all of the terms of the declaration and by all terms of the Articles of Incorporation and Bylaws for the Association. 4. Pursuant to the governing documents and Chapter 718, Florida Statutes, Respondent is obligated to adhere to certain restrictions and guidelines regarding remodeling work performed to and in his unit. 5. Section 11.3(D) of the amended and restated Declaration of Condominium (declaration ) requires all installations and additions to limited common elements be approved by the board of directors. 6. Section 8.1(C), of the declaration lists doors as part of the limited common elements within the Association and states: Any part of the common elements that is connected to or exclusively serves a single unit, and is specifically required in Section 11 of this declaration to be maintained, repaired or replaced by or at the expense of the unit owner, shall be deemed a limited common element...this paragraph includes windows, screens and doors.. 7. Respondent did not dispute that he replaced the front screen/storm door to his unit without first being granted approval by the board in violation of the declaration. 8. After replacing the door, Respondent sent an email to the board acknowledging his error and admitting his conduct violated the declaration. However, he took no action to cure the violation. 2
Conclusions of Law The Division has jurisdiction over the parties and the subject of this dispute pursuant to Section 718.1255, Florida Statutes. This Summary Final Order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which requires the arbitrator to summarily enter a final order if no disputed issues of material fact exist. On February 3, 2016, Respondent was notified by letter from the Association it had learned he had replaced his front door without the Association s approval. The Association said it had determined, once it inspected the door, that it did not conform to the aesthetic scheme of the condominium. Then the Association demanded that the old door be returned or that the new door be replaced with one that conforms. In response to the petition for arbitration, Respondent stated in writing on August 15, 2016, that: In this motion, they again state my door does not conform because the handle, kick plate and middle support do not match all the other doors in the complex. They say the pictures of other doors I submitted are of conforming doors. There are five different door handles and two different kick plates on doors they say are conforming, yet they say that my door does not conform for the same reason. I am requesting that their claim be denied. Pursuant to an order issued by the undersigned on August 12, 2016, Respondent filed on August 23, 2016, color photographs of his front exterior door the front of which is a screen door which is the focus of this dispute. Respondent replied in a timely fashion and also filed photographs of five other front doors in his building which also have screened doors. Respondent notes that on the various doors on his building s units there are several different door handles and kick plates in various degrees of condition. Respondent opposes the Association s petition by stating, the case should be dismissed because if these doors are compliant as 3
stated by the board in their letter dated August 5, 2016, my door is compliant too. My door gives me added security, value to my condo and is more energy efficient especially in summer months as I live here year round. The undersigned does not agree with Respondent s description of the doors. Although the screen doors are similar, Respondent s front screen door might be more accurately described as a storm door. It is without question different from the others and far more attractive. Respondent s screen door may or may not actually contain a screen, one cannot tell with the tinted glass used in the door. Respondent refers to this portion of the door as its middle support. It has shiny tinted glass on the top and bottom of the door and the inset tinted glass sections like a window, can slide up and down. Respondent s screen/storm door also has a brass toned handle and a double beveled shiny white kick plate. The other screen doors are white aluminum screen doors with actual screens at the top and bottom and white painted aluminum handles. Depending on the angle, the solid white exterior door behind the storm door at Respondent s apartment cannot be seen. The exterior white door behind the other units with actual screen doors can be clearly seen. There is no comparison between Respondent s door and the others to support Respondent s claim that, if the other doors are compliant then so is mine. Given Respondent s admission that he failed to obtain the required Association approval for the modification of his screen/storm door is alone enough reason for ordering removal of the door. Murano a Portofino Condominium Association, Inc., v. Samuel, 2010-03-0166, Final Order (May 20, 2011). That Respondent feels his door gives him added security, adds value to his condo and is more energy efficient in summer months is irrelevant to the argument. 4
Respondent s decision to replace his exterior screen door with a storm door which has doubtlessly improved the appearance of his unit, does not alter the fact that the board nonetheless has an interest in maintaining a uniform exterior for its units. Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 639 (4th DCA 1981). The declaration at Section 11.3(D) grants the association the sole discretion to determine whether a proposed alteration to a limited common element conforms with the aesthetic design of the condominium and the authority to approve those alterations that in its judgment meet that standard and to disapprove those alterations that do not. Killearn Acres Homeowners Asso, Inc. v. Keever, 595 So. 2d 1019 (Fla. 1st DCA 1992)(declining to supplant the association s aesthetic judgment with its own to permit a unit owner who had not sought association approval to keep a satellite dish in his yard). Respondent s actions of replacing his door without seeking the approval of the Association cannot be condoned by the undersigned. Therefore, the Association s prayer for relief is GRANTED. On or before December 2, 2016, Respondent shall replace his door with the one he removed or the equivalent thereof, or the Association may do so without further notice, at Respondent s expense. Pursuant to Section 781.1255(4)(m), Florida Statutes, this order may be enforced in a state court of competent jurisdiction in which the condominium is located. DONE AND ORDERED this 8 th day of November, 2016, at Tallahassee, Leon County, Florida. Leah A. Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road 5
Tallahassee, Florida 32399-1030 Telephone (850) 414-6867 Facsimile (850) 487-0870 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. As provided by section 718.1255, 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 in accordance with Rule 61B-45.048, F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and U.S. Mail to the following persons on this 8 th day of November, 2016: Matthew B. Roepstorff, Esq. Pavese Law Firm P.O. Drawer 1507 Ft. Myers, FL 33902-1507 Attorney for Petitioner Tel.: 239-334-2195 matthewroepstorff@paveselaw.com Dennis DiVico 4718 S.W. 12 th Place #104 Cape Coral, FL. 33914 Respondent Tel.: 239-313-9058 Fax.: 239-225-0590 divicod@embargmail.com Leah A. Simms, Arbitrator 6