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 MILLER VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No KAY A. LICHTENSTEIN, Respondent. / FINAL ORDER Pursuant to notice, a formal hearing was held before the arbitrator in this case on February 18, 2000, commencing at 9:30 a.m., at the law offices of Siegfreid, Rivera, Lerner, De La Torre & Sobel, P.A., in Coral Gables, Florida. David Israel, Esquire, represented the petitioner, Ocean Riviera Association, Inc. Patricia Cerda appeared on behalf of the respondent, Kay A. Lichtenstein. Both parties presented the testimony of witnesses and tendered documents and photographs into evidence. On February 18, 2000, the petitioner filed photographs, and on February 28, 2000, the petitioner resubmitted a copy of the condominium documents. At the hearing, the arbitrator requested the petitioner produce a copy of the architectural guidelines and a legible copy of the portions of the declaration of condominium that designate which areas are limited common elements as opposed to common elements. The petitioner was unable to locate the requested copy of the declaration. However, on April 19, 2000, the 1

2 petitioner submitted a copy of the Rules and Regulations and Architectural Guidelines. This order is entered after consideration of the complete record in this matter. The petition alleges that the respondent removed a palm tree, installed four (4) stepping stones, planted plants and surrounded them with a cement border and installed an iron railing in a place not authorized by the board, all in violation of the condominium documents. As relief, the association requests that the respondent be required to plant a new tree; remove the stepping stones, plants, and border; return the iron railing to the position approved by the board; and submit a plan to the association for approval prior to making any future alteration to the common property landscape. In her answer, the respondent admits engaging in each of the alleged activities. However, the respondent contends that the tree was dead and that the association s enforcement efforts should be barred by the affirmative defenses of selective enforcement and estoppel. The relevant sections of the condominium documents provide as follows: Article 11, Section A(i) of the declaration provides as follows: By the Association. The Association shall maintain, repair and replace at the Association s own expense: (i) All Common Elements. Article 11, Section B(vi) of the declaration provides as follows: No unit owner other than the declarant shall make any alterations in the portions of the buildings 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 buildings or impair any easement without first obtaining approval from the Board of Directors of the association. 2

3 Paragraph 6 of the Rules and Regulations provides, in part, as follows: Common Elements shall not be obstructed, littered, defaced or misused in any manner. None of the Common Elements shall be decorated or furnished by any Condominium Unit Owner or resident without the Association s approval. Paragraph 10 under the Common Areas heading of the Rules and Regulations and Architectural Guidelines provides: (10) Porch railings may not exceed the front entrance way or front wall of a unit. (A) Porch railing may not exceed three (3) feet in height. (B) Iron bars and porch railing must be kept in good condition and painted on a regular basis. With regards to the tree, in an order entered on December 17, 1999, the arbitrator ruled that the unit owner violated the condominium documents by removing the tree from the common elements and that testimony would be taken at the final hearing regarding damages; that order is incorporated by reference. Ralph Perrone, the association s president, testified that the association would be willing to permit Ms. Cerda to replace the tree with a container-grown Alexander Palm tree. 1 Ms. Cerda agreed to the offer, thereby resolving the dispute regarding damages due to the removal of the tree. As to the four stepping stones installed by the respondent, Article 11, Section B(vi) of the declaration prohibits unit owners from making additions to the common elements and Rule 6 of the rules and regulations prohibits unit owners from decorating the common elements. The unit owner s installation of the stepping stones on the common elements violated these sections of the condominium documents. The unit 1 At various stages in the case the parties have disagreed as to what type of tree was removed. However, the association s willingness to accept the container-grown Alexander Palm negates the need to determine the tree s classification. 3

4 owner presented no viable affirmative defense regarding this issue. Moreover, the stepping stones are presently located on the site at which the replacement tree must be planted. Therefore, for these combined reasons, the unit owner shall remove the stepping stones. With regard to the count involving the flowerbed, Ralph Rios, the association s property manager, testified that the respondent s flowerbed has been toned down and that, in its present state, it is permissible. No testimony or evidence was offered to the contrary. Therefore, this count is dismissed. The final issue involves the placement of the respondent s iron railing/gate. The previous unit owner was given permission to install the gate flush with the anterior wall of the unit. The respondent extended the gate out onto the common elements. Article 11, Section B(vi) of the declaration of condominium prohibits unit owners from making any additions to the common elements or doing any work which would jeopardize the safety or soundness of the buildings or impair any easement without first obtaining approval from the Board of Directors of the association. Without question, the respondent did not obtain approval from the board of directors prior to installing the gate in its current location. Therefore, the respondent violated the documents by extending the gate beyond the front entrance way or front wall and onto the common elements. The respondent contends that other gates are similarly situated, that the association is engaging in selective enforcement, and that the association should be estopped from enforcing the relevant sections of the condominium documents. Selective enforcement involves the failure of an association to enforce the condominium documents in other instances bearing sufficient similarity to the instant case to warrant 4

5 the conclusion that it is discriminatory, unfair, or unequal to permit the association to enforce the restriction in the present case. Oceanside Plaza Condominium Assn. Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (September 4, 1996). In support of her defense, the respondent asserts that the following unit owners have gates that constitute comparable violations: Marisol Tabango 2, Rolando Soler 3, and Elvin Mafes 4. The petitioner contends that any gate located outside of a townhome unit, as opposed to a condominium unit, does not constitute a comparable violation because the gates located outside of the townhome units are not violations at all and are permitted by the architectural committee s guidelines. The Tabango and Soler units are townhome units. The portion of the condominium documents that addresses railings is Paragraph 10 under the heading of Common Areas of the Rules and Regulations and Architectural Guidelines, which provides as follows: Porch railings may not exceed the front entrance way or front wall of a unit. This rule on its face makes no distinction between condominium units and townhome units. Therefore, arguably the petitioner s position that the relevant rule does not apply to townhome units would appear to be contradicted by the rule itself. Nevertheless, regardless of the foregoing, the association is responsible for the operation and maintenance of the common elements. If a hazard exists on property to which its maintenance duties extend and it fails to correct the hazard, the association and its members could be held liable for injuries sustained as a result. Hemispheres Condo. Assn., Inc. v. Corbin, 357 So. 2d 1074 (Fla. 3rd DCA 1978)(association sued in 2 Owner of the unit located at 6660 SW 130 Ave. # Owner of the unit located at 6660 SW 130 Ave. #

6 tort for wrongful death of tenant who drowned in association pool). The petitioner offered testimony that the respondent s railing in its present location blocks access to the fire alarm that is located directly behind the stairwell, thereby creating a safety hazard. The Tabango and Soler gates units do not connect to a stairwell and do not block a fire alarm; therefore, these gates - although violations of the rule - are not comparable violations. The Mafes unit is a condominium unit, and his gate does attach to a stairwell behind which a fire alarm is located. However, as shown through photographs and by testimony at the hearing, Mr. Mafes s gate does not protrude as far as the respondent s gate and does not block access to the fire alarm located behind the stairwell. Therefore, Mr. Mafes s gate is also not a comparable violation. The affirmative defense of selective enforcement must, therefore, be stricken because the respondent has failed to prove the existence of a comparable violation. The respondent next asserts the affirmative defense of estoppel. To prove estoppel, the respondent must show: that the association made a representation about a material fact that is contrary to a later asserted representation or position; that the respondent relied on the first representation; and that her reliance caused a detrimental change by the respondent. State Department of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)(citing Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971)). The respondent asserts in her answer that the letter from property manager Ralph Rios dated January 22, 1999, stating that there was no landscape plans for the condominium property, led her to believe that small improvements by homeowners were acceptable and encouraged. It does not logically 4 Owner of the unit located at 6490 SW 130 Ave. #

7 follow that an assertion by the association that it did not have any plans for landscaping would indicate that a unit owner has permission to move her gate further onto the common elements. The respondent has failed to satisfy the first element of the test outlined above; therefore, there is no need to address the remaining elements. Since the respondent s gate is located on the common elements in violation of the condominium documents and the respondent has failed to successfully assert an affirmative defense that would bar the association s enforcement action, the relief requested by the association as it relates to the iron railing/gate shall be granted. Based on the foregoing, it is ORDERED: 1. The petitioner s request for relief is GRANTED in part. 2. The respondent, Kay A. Lichtenstein, shall remove the stepping stones and plant a container-grown Alexander Palm tree in the location where the tree was removed within forty-five (45) days of the date of this order. 3. The respondent shall remove the iron railing/gate from its present location. She may reinstall the gate at the previously approved location. 4. The count requesting removal of the respondent s flowerbed and its cement border is dismissed. 5. The respondent shall in the future comply with Article 11, Section B(vi) of the Declaration of Condominium, Paragraph 6 of the Rules and Regulations, and Paragraph 10 under the heading of Common Areas in the Rules and Regulations and Architectural Guidelines. DONE AND ORDERED this 28th day of June 2000, at Tallahassee, Leon County, Florida. 7

8 Cassandra Pasley, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida

9 RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY S FEES As provided by s , 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 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 MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to David Israel, Esquire, Siegfried Rivera Lerner De La Torre & Sobel P.A., 201 Alhambra Circle, Suite 1102, Coral Gables, FL and Patricia Cerda, 6475 SW 129 Place, Apt #402, Miami, FL 33183, this the 28th day of June Cassandra Pasley, Arbitrator 9