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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION LUISA SUAREZ, Petitioner, v. Case No COUNTRYSIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in this case on June 16, During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and cross-examined witnesses. The parties have filed post-hearing memoranda. This order is entered after consideration of the complete record. Appearances For Petitioner: For Respondent: Duane E. Baum, Esq South Pine Island Road Suite 600 Plantation, FL Douglas J. Jeffrey, Esq Miami Lakes Drive East Suite 379 Miami Lakes, FL Page 1 of 9

2 Statement of the Issue Did Countryside Village Condominium Association, Inc. (the Association) improperly refuse to grant Respondent a parking permit to park in her assigned space? Relevant Procedural History On October 14, 2014, Petitioner filed a petition alleging that the Association was improperly denying her right to park her car in her assigned parking space. On November 10, 2014, an Order Requiring Answer was entered. On December 8, 2014, a default was entered against the Association. On December 9, 2014, the Association filed for a motion for an enlargement of time to answer the petition. On December 18, 2014, Petitioner filed an objection to the Association s motion. On December 22, 2014, the arbitrator entered an Order After Case Management Conference which vacated the default and granted a temporary injunction for Petitioner to park her Ford Taurus in her assigned parking space. On January 15, 2015, the Association filed its answer. On March 10, 2015, Petitioner filed a reply. On June 16, 2015, a final hearing was held. On July 20, 2015, both Petitioner and the Association filed legal briefs and proposed final orders. Findings of Fact 1. Countryside Village Condominium Association, Inc. is the corporate entity responsible for the operation of Countryside Village, a condominium. 2. Luisa Suarez owns a unit in the condominium and therefore, is a member of the Association. 3. On June 16, 2015, a hearing was held. The parties presented witness testimony and entered documents into evidence. Page 2 of 9

3 4. Petitioner was assigned a parking space when she purchased her unit. 5. Lorenzo A. Hernandez is Petitioner s son. Elizabeth De La Caridad Hernandez (Ms. Hernandez) is Petitioner s daughter-in-law. 6. On May 19, Ms. Hernandez tried to park the family car in Petitioner s assigned parking space. The Association s property manager, Miguel Rueda, told Ms. Hernandez that she could not park the family car in Petitioner s assigned parking space. 7. On or about May 21, 2014 and again on May 23, 2014, Ms. Hernandez was again told by Mr. Rueda that she could not park the family car in Petitioner s assigned parking space. 8. On or about May 23, 2014, the Association received written correspondence from Petitioner s doctor that informed the Association that Petitioner, who is 87 years of age, needed to undergo cataract surgery and would need someone to be with her until she recovered from the surgery. Additionally, Ms. Hernandez advised the Association that due to Petitioner s condition, Petitioner cannot drive and needed her family to provide her with transportation and help care for her until she recovered from her surgery. Furthermore, Ms. Hernandez advised the Association that Mr. and Ms. Hernandez would be residing with Petitioner temporarily. 9. On Saturday, May 24, 2014, Petitioner attempted to get a parking pass for her son and daughter-in-law to park the family car in Petitioner s assigned parking space from the security guard working for South Florida Security Group, the company providing security services for the Association. Although the security guard knew the vehicle parked in Petitioner s parking space belonged to Petitioner and her immediate family, the security guard informed Petitioner that he had received instructions from his Page 3 of 9

4 superiors that Petitioner could not get a parking pass to park her car in Petitioner s assigned parking space and they would need to park somewhere else or get towed. 10. On May 25, 2014, the security guard working on behalf of the Association gave Ms. Hernandez a parking pass to park the family car in Petitioner s assigned parking space. However, when Miguel Rueda, the property manager, discovered that the security guard had given a parking pass to Ms. Hernandez, Miguel Rueda had the security company tow the family car from Petitioner s assigned parking space. 11. On May 26, 2014, Petitioner and Ms. Hernandez sent a letter to Angela Washington, the President of the Association, informing her of the actions of Mr. Rueda and requesting an immediate remedy to the situation. Ms. Washington did not respond to Petitioner s letter or request. 12. From the initial incident that began on or about May 19, 2014, and continuing until the issuance of the arbitrator s December 22, 2014 Order granting a temporary injunction, Petitioner and her family were denied access to Petitioner s assigned parking space and had to park at a public parking lot several blocks away from Petitioner s unit. 13. As stated in its answer in pertinent part, the Association s defense is: The Petitioner s Daughter-in-law, Elizabeth Hernandez, went to the then on-site management office to request a parking permit. She was reminded that parking permits are for permanent residents only. Since Mr. and Mrs. Hernandez and their daughter were not registered with the Association as living with Ms. Suarez, she and her husband were required to complete an application and submit the necessary documentation for the vehicle in order to obtain a parking permit. Mrs. Hernandez was given the application and she left the office. On or about the following day, Mrs. Hernandez s husband returned to the office with the application in hand and threw the application on top of the [sic] Mr. Rueda s desk and told Mr. Rueda that he was not going to fill-out the application. Mr. Rueda then informed Mr. Hernandez that he and his wife will not be able to obtain a parking permit until they submit the completed application, [and] were Page 4 of 9

5 screened and approved by the Board of Directors. Mr. Hernandez then proceeded to leave the office and on his way out cursed at Mr. Rueda and said he didn t give a shit, he s going to park in the spot any way. [sic] It is further denied that there has been any violation by the Association or its manager. Every resident that completes the screening process and is approved by the Board of Directors obtains a parking permit. Those who fail to undergo the screening and registration process also fail to obtain a permit. The entitlement requires the screening process, and this is consistent with all bylaws, rules and regulations of the Association. 14. The Association s Parking Rules and Regulations state in pertinent part: The Association will issue parking permits for authorized residents and parking passes for guests of authorized residents. An authorized resident is one that has been properly screened and approved by the Association. To obtain a parking permit residents are required to submit a copy of: * Driver s license for each adult residing in the unit. * Insurance for each vehicle * Vehicle registration for each vehicle * Resident Registration Update Form The Association reserves the right to revoke, suspend, or deny the issuance of parking permits or passes, except that every unit will be entitled to a minimum of one (1) permit. 15. Section 23 of the Declaration of Condominium states in pertinent part, (t)he Property Owners Association shall assign (1) parking space to each Unit Owner Section 11 of the Association s Declaration of Condominium states, in pertinent part: (T)he Association shall have all the powers and duties... including; without limitation:... The power to adopt and amend the rules and regulations covering the details of the operation and use of Condominium property.... Page 5 of 9

6 In the event of conflict between the powers and duties of the Association or otherwise, the Declaration shall take precedence over the Articles, By- Laws and applicable Rules and Regulations; the Articles shall take precedence over the By-Laws and applicable Rules and Regulations; and the By-Laws shall take precedence over applicable Rules and Regulations, all as amended from time to time. 17. Section 17.1 of the Association s Declaration of Condominium states: Occupancy. Each Unit shall be used as a residence only, except as otherwise herein, expressly provided. A Unit owned by an individual, corporation, partnership, trust or other fiduciary may only be occupied by the following persons, and such persons families and guests: (i) the individual Unit Owner, (ii) an officer, director, stockholder or employee of such corporation, (iii) a partner or employee of such partnership, (iv) the fiduciary or beneficiary of such fiduciary, or (v) permitted occupants under an approved lease or sublease of the Unit (as described below), as the case may be. Occupants of an approved lease or subleased Unit must be the following persons, and such persons families and guests: (1) an individual lessee or sublessee, (ii) an officer, director, stockholder or employee of a corporate lessee or sublessee, or (iv) a fiduciary or beneficiary of a fiduciary lessee or sublessee. Under no circumstances may more than one family reside in a Unit at one time. Families or words of similar import used herein shall be deemed to include spouses, parents, parents-in-law, brothers, sisters, children and grandchildren. In no event shall occupancy (except for temporary occupancy by visiting guests) exceed two (2) persons per bedroom. The Board of Directors shall have the power to authorize occupancy of a Unit by persons in addition to those set forth above. The provisions of this Section 17.1 shall not be applicable to Units used by the Developer for model apartments, sales offices, other offices or management services. (emphasis supplied). Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to Section , Florida Statutes. Page 6 of 9

7 By its own admission in its answer, the Association s property manager told Mr. and Ms. Hernandez, that they would have to be screened and approved by the Board of Directors before they would be given a parking permit. The Declaration permits the Association the right to screen and approve tenants. However, the Declaration gives the family members of a unit owner, as defined by the Declaration, the absolute right to reside in the unit. The Association s Parking Rules and Regulations purport to allow the Association to authorize and screen residents before they are provided a parking pass. However, the Rules and Regulations conflict with the Declaration which states that every owner is entitled to a parking space and a unit owner s family are permitted to reside in the unit without approval of the Association. Under Section 11 of the Association s Declaration, the Declaration prevails over the Association s Rules and Regulations. Furthermore, to the extent that the Rules and Regulations may conflict with the residential use provisions of the Declaration, they are of no effect. See Castro v. Tropicana Resort Condo. Ass'n, Inc., Arb. Case No , Final Order of Dismissal (October 1, 2013); The Trellises Condo. Ass'n, Inc. v. Stier, Arb. Case No , Summary Final Order (January 22, 2000); Beachwood Villas Condo. v. Poor, 448 So. 2d 1143 (Fla. 4th DCA 1984). Therefore, the Association s property manager improperly required that Mr. and Ms. Hernandez be approved as authorized residents before issuing Petitioner s parking pass. However, the Association may enforce the other requirements of its policy. Therefore, once Petitioner and/or her family members supply the Association Page 7 of 9

8 with: the driver s license for each adult residing in the unit; insurance for each vehicle, vehicle registration for each vehicle; and, the Resident Registration Update Form (as long as the form is for informational purposes only and not for approval). Based upon the above, it is ORDERED: 1. Petitioner s request for relief is GRANTED. 2. The Temporary Injunction entered on December 22, 2014 shall no longer be in effect as of February 1, No later than ten (10) days after Petitioner provides the required items to the Association, the Association shall issue Petitioner a parking pass for the use of her assigned parking space. DONE AND ORDERED this 22nd day of December, 2015, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Phone (850) / Fax: (850) 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 , Florida Statutes. As provided by section , 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 , Florida Administrative Code. Page 8 of 9

9 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and facsimile to the following persons on this 22nd day of December, 2015: Duane E. Baum, Esq South Pine Island Road Suite 600 Plantation, FL Fax: Attorney for Petitioner Douglas J. Jeffrey, Esq Miami Lakes Drive East Suite 379 Miami Lakes, FL Fax: Attorney for Respondent Terri Leigh Jones, Arbitrator Page 9 of 9