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 HILLCREST EAST NO. 25, INC., Petitioner, v. Case No SONDRA ROCK and MARK ROCK, Respondents. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: The association filed its petition in this matter on May 17, 2002, seeking entry of a final order requiring the respondents to remove their 2002 GMC Sonoma pickup truck from the condominium property. The respondents filed an answer on June 21, In their answer, the respondents claim that the association is selectively enforcing its parking restrictions against them and that the board had given the respondents approval to park their truck on the property, and therefore, should be estopped from enforcing the parking rules and regulations against them. Based upon the respondent s answer and the supplemental information provided, the arbitrator finds that the respondents owned a 1995 GMC Sonoma pickup truck prior to their purchase of the present 2002 model. Based upon their ownership of the 1995 pickup prior to the adoption of the parking rules and regulations, the 1

2 respondent s assert that the respondent s new 2002 Sonoma pickup truck should be grandfather in as an exception to the rule prohibiting trucks. An order requiring supplemental information was entered on July 9, 2002, which required respondents to list all examples of other trucks being parked on the property, present evidence of board approval to park their truck upon the property and to indicate the date their truck was acquired. The respondents filed supplemental information on July 24, 2002, and the association filed a response on July 29, The state of the record is such that there are no disputed issues of material fact; hence, entry of a summary final order is appropriate. Respondent parks a 2002 GMC Sonoma F150 pickup truck on the property. The truck has an extended cab and a removable hard shell covering that covers the bed of the truck. Section 1 of the association s parking rules and regulations, effective October 10, 2000, provides as follows: (1) Only passenger automobiles and vans may be parked in the parking areas, provided these (a) do not exceed the size of one parking space, and (b) do not obstruct the use of the driveway. The following definitions shall apply for the purposes of this section: Vans and certain sport utility vehicles means vehicles with less than a one-half (1/2) ton rated weight carrying capacity which is used solely as a passenger vehicle and not as a commercial vehicle, as that term is defined elsewhere in this rule. This rule is intended to specifically permit the parking of passenger and like vans such as Dodge Caravan, Plymouth Voyager, Chevrolet Astro, Ford Aerostar and all other vehicles of similar design and which are within 5% of the height, width, and length of such vehicles. The term sport utility vehicles is specifically intended to include such vehicles as Ford Explorers, Jeep Cherokees or Grand Cherokees and Dodge Durango and all other vehicles of similar design and which are within 5% of the 2

3 height, width, and length of such vehicles which are not used for commercial purposes. Vans, trucks and other sport utility vehicles not contemplated by this section are prohibited. (Emphasis added) The respondents claim that the association is selectively enforcing its parking regulations. The respondents have offered seven examples of vehicles parking upon the property. These examples include the following vehicles: an Isuzu Rodeo, a Suzuki XL-7, a Mitsubishi Montero, a Mazda Tribute, a Honda CR-V and a Nissan Pathfinder. Each of the vehicles cited by the respondents is a small to mid-sized sport utility vehicle. The defense of selective enforcement involves the failure of an association to enforce the documents in other instances bearing sufficient similarity to the present case as to warrant the conclusion that it is discriminatory, unfair, or unequal to permit the association to enforce the restriction in the present case. Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (September 4, 1996). Where an association enforced a prohibition on pickup trucks, but failed to enforce a prohibition against sport utility vehicles, selective enforcement has not been shown to exist due to the differences that were found to exist in these types of vehicles. See Lester v. Pine Ridge at Delray Beach Condominium Association, Inc., Arb. Case No , Summary Final Order (October 28, 1994). See also Lott v. the Moorings of Pinellas County Condominium Association, Inc., Arb. Case No , Order Dismissing Petition (May 30, 1995)(selective enforcement was not shown where the association enforced its truck prohibition against pickup trucks, but declined to 3

4 enforce the restrictions against motorcycles, Broncos, Blazers, and a commercial truck.) Furthermore, the association s parking rules specifically allow sport utility vehicles to park on the property. The effect of this provision in the rules, allowing sport utility vehicles as an exception to the prohibition against trucks, is to define sport utility vehicles as being passenger vehicles and not trucks. Rules and regulations may properly set forth the distinctions between different types of violations and enforcement criteria that the board intends to follow, so long as the distinctions are reasonable. See Green Terrace Condominium Association, Inc. v. Bevan, Arb. Case No , Summary Final Order (July 19, 1993)(association rule defining truck so as to include vans with no perimeter windows or rear seats found to be reasonable because the board could have rationally determined that where a van lacks rear seats or side windows, it is not used or designed primarily as a passenger automobile, but is used or designed for the transportation of cargo.) Sport utility vehicles are primarily designed for the transportation of persons; they are not designed primarily for the transport of cargo. See Vista Gardens Condominium Association, Inc. v. Civale, Arb. Case No , Summary Final Order (August 4, 1995)( truck is a vehicle designed or used for the transportation of goods.) Accordingly, it is concluded that the parking rules and regulations set forth a rational distinction between trucks and sport utility vehicles. See Hollingsworth v. Royal Richey Village II Condominium Association, Inc., Arb. Case No , Summary Final Order (August 2, 1994)(failure of an association to 4

5 enforce its truck restriction against sport utility vehicles, but to enforce it against pickups, did not constitute selective enforcement.) see also, Lott v. The Moorings of Pinellas County Condominium Association, Inc., Arb. Case No , Order Dismissing Petition for Arbitration (May 30, 1995)(arbitrator found that Ford Broncos, Chevy Blazers, GMC Jimmy s, and Chevy Suburbans differ from a pickup truck for purposes of demonstrating selective enforcement.) Since the rules and regulations permit sport utility vehicles, there is no comparable violation for purposes of selective enforcement regarding the respondents pickup truck. The defense of selective enforcement is, therefore, rejected. The respondents assert that the board has approved the parking of their pickup truck on the association property at the time they purchased their unit and is therefore estopped from enforcing the rule against them. The elements of equitable estoppel are: 1) a representation, by the party sought to be estopped, about a material fact that is contrary to a later-asserted position; 2) reliance by the petitioner on the first representation; and 3) a change in position to his detriment by the party claiming the estoppel caused by the representation and reliance. Enegren v. Marathon Country Club Condominium Association, Inc., 525 So.2d 488 (Fla. 3rd DCA 1988). The board approved the respondents application for purchase of their unit in September The application submitted by the respondents on September 8, 1999 includes a reference to a red GMC and a white Cadillac. As the 2002 model of the GMC Sonoma pickup was not even available for purchase in 1999, the 2002 GMC Sonoma presently owned by the respondents 5

6 cannot be the same vehicle indicated upon the application for purchase that was approved by the board. Moreover, the respondent s prior ownership of a 1995 GMC Sonoma, and the alleged approval of the board thereto in 1999 prior to the adoption of the 2000 parking rules and regulations, does not entitle them to an exemption for the 2002 GMC Sonoma acquired after the adoption of the 2000 parking rules and regulations. Accordingly, the respondents have failed to demonstrate the first element of estoppel in that there has been no showing that the board has approved the 2002 GMC Sonoma pickup that the respondents presently park on the property. Moreover, even assuming that the respondents prior GMC was grandfathered in as an exception to the parking rules adopted in October 2000, such an exception would not extend to a vehicle acquired after the date the rules were adopted. See Woodside Village Condominium Association, Inc. v. Lenz, Arb. Case No , Final Order, (April 25, 2001)(where association sought to enforce a previously unenforced rule in 1997, while "grandfathering" in all existing violations, violation occurring in 1998 was not "grandfathered" in and constituted a violation of the rule.) Accordingly, the respondents have failed to show that the association has approved the respondents 2002 GMC Sonoma pickup truck and the defense of estoppel must also fail. Based upon the foregoing, the arbitrator finds that the respondents have admitted to parking their 2002 GMC Sonoma Pickup truck on the condominium property and that the parking of the 2002 GMC Sonoma pickup truck violates the 6

7 prohibition against the parking of trucks upon the condominium grounds contained in the parking rules and regulations of the association. The respondents, having presented no valid defense to allegations in the petition, are in violation of the association s parking rules and regulations. Wherefore, the respondent shall, within 30 days of the entry of this final order, shall cease parking their 2002 GMC Sonoma upon the condominium property and shall in the future comply with the association s parking rules and regulations. DONE AND ORDERED this 16 th day of August 2002, at Tallahassee, Leon County, Florida. RIGHT TO TRIAL DE NOVO Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, FL 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. 7

8 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, this 16 th day of August 2002, to: Steven A. Fein, Esq. Fein and Meloni 900 South State Road 7 Plantation, FL Attorney for Petitioner Gustavo de Zendegui, Esq. McArdle, Perez, Escoto, de Zendegui & Luaces, P.A. 201 Alahambra Circle Suite 702 Coral Gables, FL Attorney for Respondents Richard M. Coln, Arbitrator 8