STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION HIGH POINT OF DELRAY BEACH CONDOMINIUM ASSOCIATION SEC. 6, INC., Petitioner, v. Case No. 2015-02-9083 J. SCOTT MARTIN and LINDA L. MARTIN, Respondents. / SUMMARY FINAL ORDER Relevant Procedural History On June 29, 2015, High Point of Delray Beach Condominium Association Sec. 6, Inc. (the Association) filed a petition for arbitration alleging J. Scott Martin and Linda L. Martin (Respondents) erected wooden shadow box type fencing on the Association s common elements on either side of their unit s patio without receiving prior written approval of the Association. On November 9, 2015, Respondents filed an answer. On December 10, 2015, the arbitrator ordered Respondent, to supplement their answer to comply with Rule 61B-45.019(3), Florida Administrative Code, or their selective enforcement defense would be stricken. On January 20, 2016, Respondents filed a supplement to their answer. 1 On February 19, 2016, the Association filed a motion to 1 Respondents entitled the filing Pro Se Motion to Dismiss with Prejudice, but the form and substance of the filing is a supplement to their answer. Page 1 of 5
strike Respondents supplement because it did not comply with Rule 61B-45.019(3), Florida Administrative Code. In the supplement to their answer, Respondents indicated as a defense that Linda L. Martin has a disability that requires her to need the fence which is covered by state or federal housing discrimination law, hereinafter referred to as Fair Housing. The responsibility for deciding such claims does not lie in arbitration pursuant to Section 718.1255, Florida Statutes. Deerfield Beach Gardens Condo. Ass n Inc. v. Ramkalawan, Arb. Case No. 2009-02-2300, Order (Sept. 4, 2009). On January 22, 2016, the arbitrator struck Respondents fair housing claim and ordered Respondents to provide proof of filing a complaint with the fair housing agency. On February 22, 2016, Respondents filed proof of filing a complaint with the fair housing authority. On February 23, 2016, the case was abated to allow the fair housing authority time to investigate Respondents complaint. A telephonic case management conference was held on September 15, 2016. The Association was represented by counsel at the conference. Respondents appeared pro se. Respondents admitted that they did not provide medical information to the fair housing authority, as requested. On October 21, 2016, the Association provided information that the fair housing authority was not actively investigating Respondents complaint. On October 27, 2016, the arbitrator ordered the case to proceed on the remaining issues set forth in the pleading and ordered Respondents to file a response to Petitioner s motion to strike their supplement to their answer no later than November 14, 2016. As of the date of this Order, Respondents have not filed a response. Page 2 of 5
Statement of the Facts 1. Petitioner, High Point of Delray Beach Condominium Association Sec. 6, Inc. is the entity responsible for the operation and maintenance of High Point of Delray Beach Condominium Sec 6. 2. Respondents own a unit in High Point of Delray Beach Condominium Sec. 6 and are members of the Association. 3. Respondents erected wooden shadow box type fencing on the Association s common elements on either side of their unit s patio without receiving prior written approval of the Association. 4. Article XV, Section A(2), of the Association s Declaration of Condominium states, in pertinent part: 2. No Unit Owner shall make any alteration in or on any portion of the Buildings or the Common Elements which are to be maintained by the Association, or remove any portion thereof or make any additions thereto or do anything which shall or may jeopardize or impair the safety or soundness of the Buildings or which would detrimentally affect the architectural design of the Buildings without obtaining the prior written consent of the Board. 5. Article XV, Section A(3) of the Association s Declaration of Condominium states, in pertinent part: 3. No Unit Owner shall paint, refurbish, alter, decorate, repair, replace or change the Common Elements or any outside or exterior portion of the Buildings maintained by the Association, including porches, doors, windows, etc., or install any exterior lighting fixtures, mail boxes, screen doors, awnings, hardware, or similar items which are not consistent with the general architecture of the Buildings maintained by the Association without first obtaining specific written approval of the Board. The Board shall not give such approval if in its opinion the effect of any of the items mentioned herein will be unsightly as to the exterior or interior of the Buildings maintained by the Association. Page 3 of 5
Conclusions of Law Because there is no issue of material fact in dispute after the filings provided to date by the parties, this case is appropriate for summary disposition pursuant to Rule 61B-45.030, Florida Administrative Code. Pursuant to Section 718.1255, Florida Statutes, the Division has jurisdiction over a dispute involving the authority of the board to require an owner to take action with respect to the owner's unit or appurtenances, including common elements. Pursuant to Section 718.303(1), Florida Statutes, Respondents are required to comply with the Association s Declaration. Respondents admit to erecting the fencing without written approval of the Association in violation of Article XV, Sections A(2), and A(3) of the Declaration. Respondents argue two defenses: Selective Enforcement and violation of the fair housing laws. Rule 61B-45.019(3), Florida Administrative Code, provides, in pertinent part: The defense of selective enforcement shall contain all examples of selective enforcement upon which the respondent depends, shall indicate the unit(s) to which each example pertains, shall identify the unit owner(s), how long the violation has existed, and shall indicate whether the board knew of the existence of the violation(s). Respondents selective enforcement defense does not contain the specificity that Rule 61B-45.019(3) requires. Therefore, this defense fails. Respondents fair housing defense was previously struck by the arbitrator. Accordingly, it is ORDERED: 1. No later than 5:00 p.m. on December 31, 2016, Respondents shall permanently remove the unapproved fencing and restore the common elements to their original appearance prior to the installation of the fencing. Page 4 of 5
2. If Respondents do not timely remove the fence, the Association may remove the fence at Respondents sole expense and may dispose of the fence as it sees fit. DONE AND ORDERED this 17th day of November, 2016, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road 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, Florida Administrative Code. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by mail and email to the following persons on this 17th day of November, 2016: Joseph Arena, Esq. Sachs Sax Caplan, P.L. 6111 Broken Sound Parkway NW Suite 200 Boca Raton, FL 33487 Email: jarena@ssclawfirm.com Attorney for Petitioner J. Scott Martin 6 Willow Lane South Yarmouth, MA 02662 Email: j.scottmartin910@gmail.com Respondent Linda L. Martin 6 Willow Lane South Yarmouth, MA 02662 Email: lindalmartin17@gmail.com Respondent Terri Leigh Jones, Arbitrator Page 5 of 5