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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Double Eagle Condominium Association, Inc., Petitioner, v. Case No Laura Ann Barkalow, Respondent. / SUMMARY FINAL ORDER On July 28, 2008, Double Eagle Condominium Association, Inc. (the association) filed a petition for mandatory non-binding arbitration naming Laura Ann Barkalow as the respondent. The petition alleged that the respondent had constructed a paver patio extension beyond the original footprint of the patio for her unit encroaching on the common elements. On August 22, 2008, the respondent filed an answer to the petition. Since it appeared that the respondent was attempting to assert the affirmative defense of selective enforcement, by order dated September 16, 2008, the respondent was directed to file an amended answer providing additional information detailing all examples of selective enforcement upon which her defense was based. On October 10, 2008, the respondent filed a response to the order by simply refiling her original answer. 1

2 On January 8, 2008, a telephonic case management conference was held in this matter. 1 During the conference the association was directed to file a written response and supplemental information regarding small patios that had been installed behind units, including, but not limited, to any written approval by the association and a description of the patios. The association was also directed to file a response regarding the respondent s allegation that a unit owner near the respondent s unit had enclosed the porch on his unit. On February 5, 2009, the association filed supplemental information and exhibits. Since no material issues of fact exist, it is appropriate to summarily rule in this matter. Fla. Admin. Code R. 61B (3). Findings of Fact 1. Double Eagle Condominium Association, Inc. is the legal entity responsible for the operation of the Double Eagle Condominium. 2. The respondent owns unit number 13 at the condominium. 3. In May 2007, the respondent constructed a paver patio extension beyond the original footprint of her unit. 4. The patio extension encroaches on the common elements. 5. The respondent did not receive association approval for the modification. 6. The association has adopted BBQ patio extension requirements as part of the association s rules and regulations. The rules and regulations state, in pertinent part, Double Eagle Condominium Association Rules and Regulations Lanais and Patios Background: 1 Notice of the case management conference was mailed to the parties on December 16, 2008, stating the time and date of the conference and providing instructions as to the telephone number to call in order to join the conference. The respondent failed to attend the case management conference. On January 12, 2009, an order memorializing the case management conference was issued. 2

3 As per the rules and regulations of the Double Eagle Condominium Association every unit owner shall: 1) Not make or cause to be made any structural addition or alterations of his unit or to the common elements without prior written consent of the Association. 2) Make no alterations, decoration, repair, replacement or change of the common elements or to any outside or exterior portion of the building whether within a unit or part of the common elements without prior written consent of the Association. As built in the Double Eagle Condominiums had a 10 x 12 covered and screened lanai and a small 7 x 12 open patio. Over the ensuing 27 years 34 of the 57 units have covered and screened in the patio section, thus enlarging their lanai. The Association has, in general, consented to these changes as long as the added lanai space is limited to the footprint of the original patio. Additional Patios: The lanai expansion thus eliminates the patio as a place to barbecue creating a dilemma for these units. Do these units barbeque inside the lanai or outside the lanai? It would appear logical that outside would be preferable from a fire safety perspective. Currently 18 of these 34 units have also added a small BBQ patio. The Association has consented to these patio additions as long as they have been small and closely tied to the lanai. The criteria the past and current Association Board has used has not been documented and communicated to the unit owners. The following is intended to achieve that objective. Criteria for Additional BBQ Patios: The Association Board is using the following criteria in evaluating requests by unit owners to add a small BBQ patio to the common ground adjacent to their lanais. Size: Limited to 10 x 6 with the 10 side adjacent to the lanai. Location: In general, next to the old patio is preferred. Material: Patio / paving stones over leveling sand flush with ground level, no concrete pads allowed. Neighbor approval: Consent by the closest neighbor is also recommended. This patio is intended as an outdoor barbeque area not a living space. Care must be taken to ensure your neighbor s privacy is not intruded upon; a cedar planting(s) may be required as a privacy screen between adjacent lanais. 7. The association filed photographs of the respondent s patio and the approved barbecue pads. The photographs show that the respondent s patio is three to four times larger than the approved barbeque pads. 3

4 8. The association has also filed copies of meeting minutes where applications for patio extensions were rejected on the basis that they would extend too far onto the common elements. 9. Section 21(e) of the declaration of condominium states: every unit owner shall not make or cause to be made any structural addition or alteration to his unit or to the common elements without prior written consent of the Association and all mortgagees holding a mortgage on his unit. 10. Section 21(h) of the declaration of condominium states: every unit owner shall make no alteration, decoration, repair, replacement or change of the common elements or the any outside or exterior portion of the building whether within a unit or part of the common elements without prior written consent of the association. Conclusions of Law Double Eagle Condominium is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the parties and subject matter of this dispute pursuant to section , Florida Statutes. The respondent, by her ownership of a unit at the condominium, is required to comply with all governing condominium documents. The respondent has installed a patio which encroaches on the condominium s common elements. The respondent has not received permission from the association for the alteration. Therefore, the respondent has violated sections 21(e) and (h) of the declaration. The respondent has attempted to raise the defense of selective enforcement. To prove the defense of selective enforcement, a party has to show that there are instances of similar violations of which the governing body has notice but in which they have refused to act. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979); Killearn Acres Homeowners Association, Inc. v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 4

5 1992); and, Camelot II Condominium Assn., Inc. v. Dirse, Arb. Case No , Final Order (May 10, 2001). The respondent bears the burden of proving her affirmative defense. Breeze South Apartments Condo., Inc. v. Beck, Arb. Case No , Final Order (May 17, 2002). The respondent has failed to provide examples of similar violations. The association has established that it has consistently approved small barbeque pads consistent with its rules and regulations. At the same time, the association has established that it actively rejected requests that exceed the permitted specifications for the barbeque pads. The respondent s patio is not similar to the barbeque pads because it greatly exceeds the size of the approved barbeque pads. The respondent also alleged that that a unit owner near the respondent s unit had enclosed the porch on his unit. The condominium units were originally built with covered and screened lanais and a small open patio. The association s rules and regulations state that over the past 27 years that the owners have been permitted to cover and screen in the small patio area. The respondent has failed to establish that any enclosures were not approved by the association and that they were of a similar violation to her violation. The respondent has failed to prove her defense of selective enforcement. Therefore, the association is entitled to enforce its governing documents against the respondent. The respondent s patio expansion violates sections 21(e) and (h) of the declaration. As relief, the association seeks an order requiring the respondent to restore the common elements to its pre-construction condition, including repairing any irrigation, electrical conduit, or utility affected. The association also requests that the respondent be required to restore the sod in the area and to remove all construction material offsite. The undersigned finds the requested relief is appropriate. 5

6 Based upon the foregoing, it is ORDERED: Within forty-five (45) days of the date of this order, the respondent shall restore the common elements to its pre-construction condition, including repairing any irrigation, electrical conduit, or utility affected. The respondent shall also restore the sod in the area and remove all construction material offsite. Florida. DONE AND ORDERED this 25 th day of March, 2009, at Tallahassee, Leon County, James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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 , F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 25 th day of March, 2009: John P. Collins, Jr., Esq. John P. Collins, P.A. 59 Lake Morton Drive Lakeland, FL Laura Ann Barkalow 5225 Imperial Lakes Boulevard Apartment #13 Mulberry, FL James W. Earl, Arbitrator 6