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 WEKIVA COUNTRY CLUB VILLAS HOMEOWNERS ASSOCIATION, INC., Petitioner, v. Case No HENRY HURD, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary order in a dispute which involves no disputed issues of material fact. The association filed this action in March of 1997, seeking removal of a section of 6" glass block which respondent installed in order to replace opaque, amber-colored sidelights and to replace a bathroom window. The sidelights in this complex are in the entryways and consist of framed-in glass areas several inches to over a foot wide which are adjacent to the handled side of the doors and run the height of the doors. Petitioner seeks removal of the improvements and replacement of the original-style windows. Respondent filed his answer on June 25, 1997 and raised the defenses of selective and arbitrary enforcement of the provisions in the declaration regarding exterior alterations, and estoppel. Respondent submitted a number of photos showing 1

2 alterations to sidelights and to windows which were made by other unit owners. Former arbitrator Yeline Goin struck the defense of estoppel and invited the petitioner to reply to respondent s selective enforcement defense. Petitioner did so on July 25, APPEARANCES Petitioner: Respondent: Linda M. Skipper Paul L. Wean, P.A East Robinson Street Orlando, Florida Henry W. Hurd, III, pro se 150 Golf Club Drive Longwood, Florida STATEMENT OF THE ISSUES PRESENTED The ultimate issues for resolution are whether Petitioner s failure to approve respondent s proposed modifications to the sidelights and bathroom window was unreasonable. FINDINGS OF FACT 1. Petitioner, Wekiva Country Club Villas Condominium Association, Inc., is the condominium association responsible for the operation and administration of Wekiva Country Club Villas Condominium (Wekiva or Association). 2. Respondent, Henry Hurd III, is the fee simple owner of a unit at Wekiva Country Club Villas Condominium. 3. Wekiva Country Club Villas Condominium consists of seventy-five condominium units. 4. Article X of the Declaration of Condominium provides, in pertinent part, as 2

3 follows: A. By the Association -- The Association shall maintain, repair and replace at the Association s own expense: 5. The garage door, front door and adjoining glass area, and the rear door to the master bedroom. B. By the Condominium Parcel Owner -- The responsibility of the condominium parcel owner shall be as follows: 1. To maintain, repair and replace at the unit owner s expense all portions of the unit except the portions to be maintained, repaired and replaced by the Association. Included within the responsibility of the unit owner shall be windows and window operators, window screens, sliding glass doors, plate glass, wiring, built-in cabinets, electrical outlets and fixtures which are wholly within the unit All such maintenance, repairs and replacements shall be done without disturbing the rights of other unit owners. 4. Not to paint or otherwise decorate or change the appearance of any portion of the exterior of the building or any stucco portion of the unit. 6. No condominium parcel owner shall make any alterations in the portions of the building which are to be maintained by the Association, or remove any portion thereof or make any additions thereto or do any work which would jeopardize the safety or soundness of the building or impair any easement, without first obtaining the approval from the Board of Directors of the Association. D. Alteration of Unit --...No unit owner shall cause any improvements or changes to be made to the exterior of the building including but not limited to painting, installation of electrical wires, television or air conditioning units which may protrude through the walls or roof of the building, install lights in balconies or exterior walls, or in any manner change the appearance of the exterior of the building or any portion of the building not totally within the unit, without consent of the Association... (Emphasis added.) 5. Respondent states in his answer that he sent the association a letter on April 3

4 12, 1996 asking for permission to make changes to the sidelight and window. Respondent states that because he did not hear from the association for approximately two months, he went forward with the alterations. The windows were installed during the week of June 8, The board of directors, at its meeting held on September 25, 1996, voted to deny respondent s request to install the glass blocks in the sidelight and window. In a letter from Wekiva Country Club Villas Property Manager dated October 15, 1996, respondent was informed that his request to install glass block was denied, and he was instructed to remove the glass block within thirty days of receipt of the letter. On November 8, 1996, counsel for the association again demanded that respondent remove the glass block. The glass block remained, however, and in March 1997, petitioner filed the Petition for Arbitration seeking its removal. 7. In his answer, respondent raises the defense of selective and arbitrary enforcement of the provisions in the declaration and attaches several photographs depicting sidelights which have been modified by replacing the opaque, amber-colored glass with leaded glass, leaded glass with colors, frosted glass and etched glass. It is undisputed that these examples were approved by the Board of Directors prior to their installation. Respondent also submits the sworn affidavit of Helen M. Avery, a member of the Architectural Review Committee in , who attests to the fact that she has walked the property of Wekiva Country Club Villas and tallied the number of sidelights which have been modified by the original glass having been replaced with panes, leaded glass, etched glass, frosted glass and rippled glass. Out of the 75 units, 31 of the original sidelights have been so modified, according to the tally sheet attached 4

5 to her affidavit. 8. In response to the previous arbitrator s request that petitioner reply to respondent s defense of selective enforcement, petitioner explained the changes to various other unit owners sidelights, saying, The association approved such changes because none of the alterations made by the other unit owners required a change to the configuration of the framing around this area. Respondent has altered the configuration of the framing by placing cement around this area in place of the standard frame. 9. Respondent countered with the sworn affidavit of Bobby E. Story, Certified Building Contractor, who testified that the milled frame around the glass block is the same as that in twenty other units that he surveyed. He concluded that the framing is the standard frame, and that the configuration of the framing has not been altered. 10. It is the undersigned arbitrator s conclusion that, despite this issue of fact, the alteration which respondent has made by installing glass block is not substantively different from the alterations effected by the replacement of the original-style sidelights with various types of glass, such as leaded, frosted, and etched glass. In fact, there does not appear to be any alteration of the wood framing, as the glass block appears to have been set in the frame with the resulting perimetrical space having been filled with grout. Close examination of the leaded glass in unit 154 next door reveals that white trim or beading has been placed around the perimeter of the pane of leaded glass. 11. Although some grout has been placed in the interstitial spaces between the blocks and surrounding the blocks, the addition of grout does not vary greatly from the addition of the trim which was used to secure leaded glass in unit 154, for example. 12. Regarding the replacement of the bathroom window with glass block, 5

6 respondent has provided no similar examples where unit holders were granted approval to alter a bathroom window, which is a common element. Respondent gives no examples whereby a unit owner removed the original bathroom window and made changes to the exterior of the window as did respondent. In the absence of documentation of similar alterations to other bathroom windows, respondent s contention that the board of directors arbitrarily denied his request to replace his bathroom window with glass block is rejected. CONCLUSIONS OF LAW The undersigned has jurisdiction over the parties and subject matter of this action pursuant to section , Florida Statutes. Whether the Association Acted Arbitrarily in Denying Permission to Install Glass Block Essentially, respondent argues that the association acted arbitrarily in denying his request to install the glass block in his sidelights and bathroom window. In Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981), the court stated as follows: There are essentially two categories of cases in which the condominium association attempts to enforce rules of restrictive uses. The first category is that dealing with the validity of restrictions found in the declaration of condominium itself. The second category of case involves the validity of rules promulgated by the association s board of directors or the refusal of the board of directors to allow a particular use when the board is invested with the power to grant or deny a particular use. * * * 6

7 The rule to be applied in the second category of cases, however, is different. In those cases where a use restriction is not mandated by the declaration of condominium per se, but is instead created by the board of directors of the condominium association, the rule of reasonableness com es into vogue. The requirement of reasonableness in these instances is designed to somewhat fetter the discretion of the board of directors. By imposing such a standard, the board is required to enact rules and make decisions that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners. In cases like the present one where the decision to allow a particular use is within the discretion of the board, the board must allow the use unless the use is demonstrably antagonistic to the legitimate objectives of the condominium association, i.e., the health, happiness and peace of mind of the individual unit owners. [Id. at ]. The court in Basso, supra, held that the board failed to demonstrate that its denial of permission to drill a well was reasonably related to the factors identified by the board in its decision-making process. The board failed to prove any effect on increased salinity; the board failed to prove that water pumped from the new well would impose a threat of staining on the common elements; and the board failed to present any evidence supporting its belief that a proliferation of wells would result:... Simply stated, Hidden Harbour failed to demonstrate a reasonable relationship between its denial of the Basso s application and the objectives which the denial sought to achieve. [Id. at 640]. Respondent argues that the board has provided no reasonable rationale for allowing dozens of unit owners to replace their sidelights with various types of glass while denying this same benefit to him. Petitioner counters that the board s decision was not arbitrary because respondent s installation of glass block resulted in a change in the configuration of the framing around the glass, whereas the installation of various 7

8 other window types did not result in any change to the configuration of the framing. In Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975), the Fourth District Court of Appeal held: Certainly, the association is not at liberty to adopt arbitrary and capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable, the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining. [Id. at 181-2]. [Emphasis added]. The exercise of the board s discretion is subject to review. Basso, supra. In conducting the review, rather than relying on a potentially-subjective judgment of what proper aesthetics should be, the focal point must be whether the decision of the board had a rational basis. In the instant case, the declaration provides no guidelines to the association with regard to its approving or denying a request to improve the exterior of a building. Moreover, in its denial, the association itself fails to specifically explain its denial, merely stating, After investigating the documents, polling the board members and speaking with the association s attorney the board has denied your request. A declaration of condominium may properly delegate to the board of administration the authority to approve material alterations or additions to the common elements. Vinik v. Taylor, 270 So. 2d 413 (Fla. 4th DCA 1972). Where a declaration delegates this authority to the board, no vote of the unit owners is required, and the board, within its discretion, which discretion is reviewable, is authorized to approve or disapprove the proposal. 8

9 There is no doubt but that if the board had in the past affirmatively determined to maintain visual integrity by permitting only the original type of sidelights, then a request by respondent to install glass block could reasonably be denied. However, that is not the history of this condominium. The board has repeatedly permitted various types of sidelights to be installed, ranging from leaded glass to frosted glass to etched glass. Considering in totality the facts of this case, the addition of glass block sidelights will simply not detract from the current appearance of the condominium as a whole. As foretold by the court in Vinik, supra:...quite frankly we are in disagreement with the decision reached by the Board, in approving this alteration by the defendants, as we feel, as did the objectors, that the alteration materially changed the exterior appearance of the building. If succeeding applicants are loosely granted such approval, it could lead to a hodge-podge or bizarre outward appearance, with some balconies enclosed and some not, and different architectural treatments given sway. It could very well harm or destroy the symmetry and attractiveness of the building as a whole. Regardless, this is not our problem. The unit owners have clearly delegated this discretion and authority to their elected Board of Directors.... [Id. at 417]. [Emphasis added]. Like the condominium documents at issue in Vinik, the documents involved in this case delegate to the board the authority to approve certain alterations. Over time, this authority has been exercised in such a manner as to permit, arguably, the installation of dozens of different types of sidelights in the condominium complex. While the overall appearance of the buildings does not convey the bizarre outward appearance identified in Vinik, supra, there is a positive aspect of a hodge podge or variable outward appearance, given the various modifications permitted by the board of directors. The symmetry of the entryways with their accompanying sidelights has 9

10 already been compromised. The result is the conclusion that it was arbitrary for the board to refuse to approve respondent s application to install glass blocks in his entryway. There exists no such lack of symmetry vis a vis the bathroom windows in this condominium complex, however. Installation of the glass block in respondent s bathroom window changes the outward appearance of the common elements as compared to other units. All other bathroom windows are uniform in outward appearance, consisting of the original-style window. See Olive Glen Condominium Association v. Timothee, Arbitration Case No (Helton / Final Order on Default / November 25, 1992) (Energizer Bunny wooden figure erected on common elements by unit owner violated documents prohibiting unit owners from changing appearances of common elements; even if animal was situated within the unit boundary, its presence simultaneously changed the appearance of the common elements). Therefore, with regard to the bathroom window, respondent s argument of arbitrary enforcement is rejected. RELIEF, ORDER, AND REMEDY The relief sought by the respondent in this matter is PARTIALLY GRANTED. Respondent shall be allowed to retain the current glass block windows which comprise the sidelights in the entryway. The relief sought by the Association in this matter is PARTIALLY GRANTED. The glass block in the bathroom window shall be removed and the original-type glass shall be replaced within sixty (60) days of the date of this order. Respondent shall hire a licensed contractor to complete the work. Should respondent fail to have the work completed within sixty (60) days of the date of this 10

11 order, the Association may arrange to have the work completed and submit the bill to respondent, who shall promptly pay it. DONE AND ORDERED this 18th day of December 1997, at Tallahassee, Leon County, Florida. Donna La Plante, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT IS FILED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Linda M. Skipper, Paul L. Wean, P.A., Suite C, 1305 East Robinson Street, Orlando, Florida 32801; and Henry W. Hurd, III, 150 Golf Club Drive, Longwood, Florida on this the 18th day of December Donna La Plante 11