STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Curlew Mobile Home Estates Association, Inc., a Condominium, Petitioner, v. Case No Herbert Y. Betts and Marguerite J. Betts, Respondents. / FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: On January 22, 2003, Curlew Mobile Home Estates Association, Inc. (petitioner/association) filed a petition for mandatory non-binding arbitration, naming Herbert Y. Betts and Marguerite J. Betts as respondents/unit owners. The petition alleges that the respondents have failed to maintain their unit in good condition, have stored merchandise and other goods and supplies outside their mobile home and have conducted open houses and other sales of goods and materials on their property, in violation of article 16, sections B.(1) and (4) and article 21, section A. of the declaration of condominium. The respondents answer, filed on February 21, 2003, asserts that to the extent that the respondents have violated the abovereferenced provisions of the declaration, any violations have been corrected prior to the commencement of this action. Furthermore, the respondents assert that the 1

2 association is engaging in selective enforcement as the respondents are being selectively prosecuted and that any personal property that the respondents may have sold from their property would have been a private sale and not an ongoing business or commercial enterprise. As the parties were unable to negotiate settlement terms, the arbitrator determined that it would be necessary to conduct a final hearing in order to rule on the disputed issues. Pursuant to notice, a final hearing was held on August 18, 2003, at 10:00 a.m. The arbitrator appeared via telephone from Tallahassee, Florida, and the parties appeared at the law offices of the Brudny & Rabin, P.A., in Clearwater, Florida. The association was represented by Bennett L. Rabin, Esquire, and John K. Finch, Esquire, represented the respondents. Both parties presented witness testimony and tendered documents into evidence. The association submitted its proposed final order on August 27, 2003, and the respondents submitted a proposed final judgment of arbitration on August 29, This order is entered after consideration of the complete record in the matter. FINDINGS OF FACT Prior to taking witness testimony, the parties stipulated to the authenticity of photographs submitted as evidence by both parties and opening statements were presented by attorneys representing both sides. The individuals listed below testified concerning the disputed issues in this proceeding as follows: Kathy Schafer, property manager for the mobile home park for the last five years, testified that every three to four months the board conducts a drive-through 2

3 of the property to search for violations. The board then approves letters to be sent to the residents who are in violation. The board also performs walk-throughs and receives letters and phone calls from unit owners regarding possible violations. In Ms. Schafer s opinion, the condition of the respondents unit was in violation of the condominium documents when the petition was filed, but many of those violations have since been corrected. Ms. Schafer also answered questions from both attorneys concerning photographs of the respondents unit submitted by each party. Some of the photographs show the respondents carport and surrounding yard area containing several articles of outdoor furniture, a popcorn maker, boxes, a ladder, pipes and other various items. Other photographs show the respondents carport almost completely filed with boxes, although Ms. Schafer was unaware of the contents of those boxes or why they were stored in the respondents carport. She also testified that she has never purchased anything from the respondents or witnessed them sell anything. Ms. Schafer answered questions about photographs of other units and whether the condition of those units was a violation of the condominium documents or not. When determining whether a particular unit has been maintained properly, Ms. Schafer testified that the association permits items to be stored outside as long as they are neat and not unsightly. Domenic Berenato, president of the board for the last five years, also testified. Mr. Berenato confirmed that the board performs a drive-through on the property to search for violations. The units must be neat and clean, orderly, aesthetically pleasing and free from damage. Mr. Berenato testified that the board 3

4 issues a newsletter to the residents to inform them of restrictions contained in the condominium documents. Mr. Berenato also answered questions about the same photographs shown to Ms. Schafer. In his opinion, the respondents have not maintained their unit in a satisfactory manner and the condition of the other units is different and well kept. He asserted that the respondents driveway is cluttered and disorderly and the surrounding yard is typically covered with various types of debris. He then testified that he has personal knowledge that the respondents have conducted sales from their home and held an open house in January 2003, but he did not attend the open house and did not observe any signs advertising the open house. Mr. Berenato also stated that residents are permitted to use the community bulletin board to sell personal items that they no longer want or need. Mr. Berenato admitted that he has been paid to repair sprinklers on some residential properties, but argues that he does not conduct a sprinkler business. The next witness to testify was Bill Jozefyk. Mr. Jozefyk is a resident at the mobile home park. He testified that he attended a barbecue at the respondents property and went inside the unit and observed numerous items on a table, including a set of knives. He purchased the knives, which appeared to be new. He also testified that while the exterior of the unit was in good condition, many items were being stored on the patio. Bob Figgs also testified. Mr. Figgs is a unit owner and claims to have personal knowledge that the respondents sell items from their unit. He testified that the front room of their unit has been used to store building materials such as 4

5 lumber, paint and exterior doors. He also testified that the respondents offered to sell him a new dishwasher, but he refused. On cross-examination, Mr. Figgs testified that he has not been to the respondents unit in almost one year and the materials he saw might have been used in the remodeling of the respondents unit. Mr. Figgs admitted to previously performing floor and tile work for other residents, but he contends that he does not conduct a business from his home. Jan Hemingway, resident, testified that she purchased a picture frame from the respondents in 2001 when she observed that the respondents had items for sale in their car. She also testified that her son discussed the sale of a couch with the respondents, however, her son did not purchase it. Ms. Hemingway further stated that she contemplated purchasing lawn ornaments from the respondents, but ultimately did not. The last time she was at the respondents unit was in winter of 2002 and she observed many items for sale, such as tables, chairs and other new items. Arthur Lovelock testified for the respondents. Mr. Lovelock is a resident and is an acquaintance of the respondents. He has been to the respondents unit since the filing of the petition and testified that the exterior of the mobile home is in good condition, no better or worse than other properties in the park. He also testified that he has never known the respondents to operate a business from their home. He has never purchased anything from them. Mr. Lovelock confirmed that many residents utilize the bulletin board to advertise personal property for sale. This is a routine and common practice at the mobile home park. He has never observed the 5

6 respondents selling personal items from their lot. The next witness was Henry Morgan. Mr. Morgan has been a resident of the mobile home park since Mr. Morgan has repaired wheel chairs, walkers, canes and battery operated carts from his home and sells them at a flea market. In one instance he sold an item from his unit, rather than at the flea market, and the board expressly told him afterward that he was not permitted to sell these items from his unit. That was the only instance in which Mr. Morgan sold an item from his property. Mr. Morgan testified that other residents provide services, such as sprinkler repair, real estate services and flooring work on the premises. However, he is unsure if any of these individuals operate a business from their homes. Peggy Boehmer, resident for approximately seven years, also testified. Ms. Boehmer testified about her knowledge of the extensive remodeling work performed at the respondents unit. She was at the respondents home about a month ago for a party and noticed the carport contained two tables, chairs and barstools, a grill/deep fryer, golf cart and a car and truck. At one party she attended at the respondents property, it was cold and she went inside and noticed some items on a table and requested to purchase three frames. Some of these items were new and some were used. She has purchased other items from the respondents at different times. However, she stated that she was never requested to come to the respondents home to purchase any items. Ms. Boehmer is also familiar with the bulletin board where residents place advertisements to sell personal items. She testified that while she is aware that the respondents have sold items to other 6

7 residents, she does not believe they are operating a business from their home. Ms. Boehmer stated that she has personal knowledge of other residents that provide services, such as odd jobs, real estate and remodeling work for the residents at the park. She has also observed materials stored outside the respondents unit, but claims it was during the remodeling phase. Angela Galati, resident, testified that she is a friend of the respondents and has visited their unit many times. She observed the remodeling work and feels that the respondents unit looks better now than it did before the work was completed. She testified that in her opinion, the respondents have not failed to maintain their unit in good condition. When Ms. Galati became aware that the respondents wished to sell holiday items, she suggested that they place an advertisement on the bulletin board. She has known the respondents for seven or eight years and has never known them to operate a business from their home. She is also aware of other residents who provide services for the residents in the park. The last witness to testify was Mr. Betts, one of the respondents in this proceeding. Mr. Betts and his wife usually reside in North Carolina for six months and the rest of the year in Florida. He works full-time at Home Depot, in both Florida and North Carolina, and his wife works as well. When they purchased their lot in March 2001, they submitted an application to the board for remodeling, which was approved. The remodeling phase was extensive and covered most of the unit. Some building materials were purchased and stored both inside and outside their unit. Mr. Betts admitted to conducting a moving sale previously, 7

8 but he alleges that he received permission to conduct the sale. Since January 2003, the respondents have continued to make both interior and exterior improvements to their lot. Mr. Betts testified that he does not conduct a business or open houses from his unit. He has never invited individuals to his property in order to sell anything. Neither he nor his wife store goods on their lot for commercial purposes. Recently, Mr. Betts purchased an 8 x 16 trailer and has removed all excess items from his unit and stores them in this trailer. He parks the trailer in the back of the mobile home park, which is permitted. He and his wife have only posted one advertisement on the bulletin board to sell holiday items. He has observed many postings on the bulletin board to sell personal items and perform odd jobs. Mr. Betts also testified that he sold patio tables to the board for use in the clubhouse. However, there was conflicting testimony as to which party initiated the sale. He admits to storing materials outside his unit when the remodeling was being performed, but the materials were kept as neat as possible. Mr. Betts further stated that he has personal knowledge of other residents providing services, such as real estate and odd jobs, on the property. He testified that he has signed real estate contracts at a resident s property. That resident has been permitted to post a real estate sign in her front yard. Mr. Betts stated that he has always kept his property in a neat and clean condition. Many of the boxes stored in his carport were filled with charitable gifts and only stored on his premises temporarily. While Mr. Betts admits to selling personal items to other residents at various times, he asserts that he is not conducting a business and never invites 8

9 individuals to his home in order to sell any type of item. Mr. Betts also testified that when he received violations letters from the association concerning the condition of his mobile home, he cleaned the areas as requested. At the conclusion of Mr. Betts testimony, each attorney presented closing arguments. CONCLUSIONS OF LAW Article 16, sections B.(1) and (4) of the association s declaration of condominium, provides, in pertinent part: 16. MAINTENANCE: The responsibility for the maintenance of the condominium units and parcels as it may apply hereafter, with the exception of those responsibilities for maintenance as provided for by the Association shall be as follows: B. By Each Unit Owner: The responsibility of the unit owner shall be as follows: (1) To maintain in good condition, repair and replace, at his expense, all portions of the unit, including any improvement placed thereon which shall include but not be limited to the following: (4) To maintain in good condition and repair and replace at his expense all portions of the unit. Such shall be done without disturbing the rights of the other unit owners. Further, article 21, section A., provides the following: 21. OBLIGATION OF MEMBERS: In addition to other obligations and duties heretofore set out in this Declaration, every owner shall: A. Not use or permit the use of his unit for any purpose other than as a single-family residence and maintain his unit in a clean and sanitary manner. The condominium units may not be used for business use or for a commercial use whatsoever. The first issue involves the manner in which the respondents maintain their unit. The association asserts that the respondents have failed to maintain their unit 9

10 in good condition, violating the declaration provisions set forth above. The respondents argue that they have consistently maintained their unit in good condition, even improving the grounds and lot, and further argue that the manner in which they maintain their lot is sufficiently similar to other lots in the mobile home park. After considering the documents tendered into evidence and the testimony presented at the final hearing, the arbitrator finds compelling facts to rule that the respondents have violated the condominium provisions set forth above by failing to maintain their unit in a clean and sanitary manner. Numerous photographs depict the exterior of the respondents lot, carport and surrounding yard area to be disorderly and crowded with boxes, trash, supplies and other debris. While it is reasonable to store certain items, like patio tables, chairs, barbecue grills and other outdoor supplies in one s carport and yard, these items must be maintained in a neat and orderly fashion, in accordance with the condominium documents. Notwithstanding the remodeling work performed on the respondents lot, the unsatisfactory condition of the respondents unit existed well after the construction project should have been completed and subsequent to the filing of the arbitration petition. Accordingly, the arbitrator finds the respondents in violation of the condominium documents by failing to maintain their unit in good condition and clean and sanitary manner; the relief sought by the association in connection with this violation is hereby granted. The association also alleges that the respondents are conducting open houses and other sales of goods and materials from their property, in violation of 10

11 article 21, section A., of the declaration of condominium. While it is clear from the evidence and testimony presented that the respondents have sold personal items to other residents in the park, the association has failed to demonstrate that the respondents have used their property for business or commercial purposes. The occasional sale of a picture frame, furniture or holiday decoration is not indicative of operating an ongoing business. The association permits residents to display advertisements to sell items and provide services via the community bulletin board. The board even permits a resident, employed as a real estate agent, to post a sign in her front yard advertising such services. While the respondents readily admit to selling personal items to other residents, it has not been shown that the respondents actions have risen to the level of conducting a business enterprise. While the arbitrator in the case of Seashore Club South Motel Condominium Association, Inc. v Galdorise, Arb. Case No , Final Order (November 24, 1993), ultimately held that the unit was used primarily for business purposes and entered an order directing the unit owner to cease business operations, the arbitrator relied on two Florida cases in making her decision. In Moore v. Stevens, 106 So. 901 (Fla. 1925), the Court stated: Instances are not lacking in which other courts have held or intimated that property restricted to use for residential purposes, so long as it is in good faith used for such, may be also used to a minor extent for the transaction of some classes of business or the following of some professional pursuits so long as the latter use is in fact casual, infrequent, or unobtrusive and results in neither appreciable damage to neighboring property nor inconvenience, annoyance, or discomfort to neighboring residents. This view, however, further requires such additional use to be so reasonably incidental to the 11

12 prescribed use and such a nominal or inconsequential breach of the covenants as to be in substantial harmony with the purpose of the parties in the making of the covenants, and without material injury to the neighborhood. [Citations omitted] Here, the arbitrator finds that the respondents have engaged in mere incidental, casual business uses, much like other residents, without harm or damage to neighboring residents or association property, and have not actively created an ongoing business entity. Furthermore, the respondents are not engaging in any activity that is significantly different from what other residents have been permitted to do. If the association is permitted to prosecute the respondents for selling personal items from their property, while allowing other residents to sell services, the association is engaging in selective enforcement. Selective enforcement will 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. Case No , Order Striking Certain Defenses (September 4, 1996). Here, the association is clearly attempting to enforce a restriction against the respondents, but, at the same time, allowing similar actions by other unit owners. Accordingly, the arbitrator finds that the respondents have not violated article 21, section A. of the declaration of condominium by using their unit for business or commercial uses; thus, the relief requested by the association pertaining to this issue is denied. 12

13 It is therefore ORDERED: Within thirty (30) days of the date of entry of this order, the respondents shall remove excess materials from the exterior of their property and maintain their unit in good condition and clean and sanitary manner. The respondents shall in the future fully comply with article 16, sections B.(1) and (4) and article 21, section A. of the association s declaration of condominium. DONE AND ORDERED this 5 th day of December 2003, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Right to Appeal As provided by section , 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 , 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 , 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 13

14 61B , 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. 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 5 th day of December 2003: Bennett L. Rabin, Esq. Brudny & Rabin, P.A U.S. Highway 19 North Suite 300 Clearwater, Florida Fax (727) John K. Finch, Esq. 323 Main Street Safety Harbor, Florida Fax (727) Melissa Mnookin, Arbitrator 14