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 HALLANDALE BEACH PRIVATE RESIDENCES CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No CORNELL CALINESCU and CRISTINA CALINESCU, Respondents. / SUMMARY FINAL ORDER This Summary Final Order is being entered pursuant to Rule 61B , Florida Administrative Code, which states: At any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. Statement of the Issue The issue in this case is whether the prohibition in the condominium s governing documents against parking commercial vehicles applies to Respondents mini-van and golf cart. Allegations and Procedural History On March 12, 2014, Petitioner, Hallandale Beach Private Residence Condominium Association, Inc. (the Association) filed a Mandatory Non-Binding Petition for arbitration naming Cornell Calinescu and Cristina Calinescu as Respondents. The Page 1 of 10

2 petition alleged that Respondents were parking and washing two commercial vehicles on the condominium property, in violation of the Association s governing documents. An Order Requiring Answer was entered on March 17, Respondents filed an Answer to the petition on April 7, 2014, denying that they were parking and washing commercial vehicles on the property, and denying that one of the vehicles, the mini-van, is kept on the condominium property at all. A case management conference was held on April 22, 2014, at which both parties were represented by counsel. The dispute centers on whether the prohibition in the condominium s governing documents against commercial vehicles applies to the vehicles owned by Respondent(s). The parties both expressed the opinion at the case management conference that mediation would not be helpful in resolving this matter. An Order after Case Management Conference was entered on April 23, Both parties filed legal arguments in support of their respective positions. This Order is entered based upon consideration of the entire record in this case. Findings of Fact 1. The Association is the governing body for Hallandale Beach Private Residence, A Condominium, with the responsibility for the operation and maintenance of the condominium. 2. Respondents own a unit in the condominium and are members of the Association. 3. At the case management conference, the parties stipulated that the photographs attached to the petition for arbitration accurately depict the two vehicles that form the basis of the dispute. Both vehicles are emblazoned with signs bearing a Page 2 of 10

3 logo and the name healthyhallendale Medical Center. 1 The mini-van is painted or otherwise marked on all four sides, from top to bottom, including the windows, with the above described signage, as well as with pictures of what appear to be a doctor and many happy smiling patients. The golf cart bears similar markings, including the telephone number of the clinic ( 954-HEALTHY ) but minus the photographs of the doctor and patients. It also has printing on the front vertical plane of its box-like roof saying COURTESY CAR and 954-HEALTHY. 4. At the case management conference, the parties agreed that the mini-van is not routinely parked on the condominium property. It is usually parked at Respondents place of business, a medical clinic, but it was parked on the condominium property for one weekend. The mini-van is used for picking up and dropping off Respondents patients/clients. The Association does not object to the mini-van coming briefly onto the condominium property to pick up and drop off patients/clients, as long as it is not parked there. 5. It is undisputed that golf carts are currently allowed on the condominium property, and are not prohibited in parking spaces. The Association seeks to prohibit the signage on Respondent s golf cart, not the golf cart per se. 6. Respondents claim the golf cart is not used for transporting Respondents patients/clients, but that Respondent Cornell Calinescu drives it to and from work at his clinic across the street. 7. Rule A. 1. Of the Hallandale Beach Private Residence, A Condominium, Rules and Regulations (hereinafter referred to as The Rules ), which are Exhibit D to 1 Respondents do not dispute that this is the name of Cornell Calinescu s medical clinic. Page 3 of 10

4 the Declaration of Condominium of Hallendale Beach Private Residence, A Condominium, dated October 7, 2002, states: (Emphasis added.) Passenger automobiles, sport/utility vehicles, mini-trucks, vans, and motorcycles (used for personal transportation and not commercially) that do not exceed the size of one parking space may be parked in the areas provided for that purpose. Under building parking spaces are assigned, and no unit owner or occupants may park more than two vehicles on the Association Property or Condominium Property (hereinafter in these rules and regulations these two terms shall be collectively referred to as Property ) unless additional spaces have been assigned to the unit. Commercial vehicles, trucks, campers, motor homes, trailers, boats, and boat trailers are prohibited. Bicycles and mopeds will be parked only in the bike storage areas or otherwise as may be designated by the directors. Vehicles maintenance, except car washing in an area that the Association may designate, is not permitted on the Property. All vehicles must be currently licensed and no inoperable or unsightly vehicles may be kept on the Property. The Developer is exempt from these regulations for vehicles engaged in any activity relating to construction, maintenance, or marketing of units, as are commercial vehicles use by venders of the Association while engaged in work at the condominium. vehicles. 8. The governing documents contain no definition of the term commercial 9. The Association quotes the Broward County Code definition of commercial vehicle in the petition. The definition quoted by the Association states as follows: Commercial vehicle includes all vehicles, motor vehicles, or trailers drawn by motor vehicles, when designed, used or maintained primarily for the delivery or transport of persons or property in the conduct of, or carrying on of, any commercial business activity for pecuniary gain or profit and where the owner or operator of such business of commercial Page 4 of 10

5 enterprise is required to obtain a Broward County occupational license pursuant to sections or 20-69, as amended, or for the solicitation of business or customers within Broward County. (Emphasis added.) Conclusions of Law 1. Jurisdiction The arbitrator has jurisdiction over this matter pursuant to Section (1), Florida Statutes. 2. Commercial Vehicles Respondents dispute that their golf cart is a commercial vehicle that is prohibited under the Declaration of Condominium because it is not used to transport persons or goods in the furtherance of a business enterprise. Respondents assert that the golf cart is registered to Cornell Calinescu personally, not to his business, and that he uses it only to drive back and forth to work. Respondents claim that the prohibition against commercial vehicles in The Rules does not apply to these vehicles because they are not used in a manner that would bring them within the definition of commercial vehicle contained in the Broward County Code. Prior arbitration cases have held that the existence of commercial signage on vehicles was sufficient to qualify them as commercial vehicles, where such were prohibited by a condominium s governing documents. Massachusetts Condo. Ass n, Inc. v. Shashaty, Arb. Case No , Final Order (September 15, 1999)(Respondent was required to remove the magnetic commercial signs on the vehicle each and every time he entered the condominium property. Removal of the vehicle was denied, as without the signs it complied with parking rules.); Westwood Page 5 of 10

6 Condo. Ass n, Inc. v. DeJohn, Arb. Case No , Final Order (November 21, 2005)(Truck was a commercial vehicle because it bore signage advertising a business. Respondents were ordered to remove the truck from the condominium premises or remove the commercial signage from the truck.) 3. Defenses a) Respondents claim that the Association, in its petition, quotes a definition of commercial vehicle from the Broward County Code that does not accurately describe their golf cart. Respondents claim that the term commercial vehicle in The Rules does not apply to their golf cart because it is primarily used for personal transportation by one of the Respondents, and the advertising displayed on it serves merely a secondary purpose. This defense is without merit because the Association s governing documents are not bound to apply only those definitions contained within the Broward County Code. Within the context of condominium parking, the term commercial vehicle has a broader meaning, as discussed above. Based upon the undisputed appearance of the signage displayed on Respondents golf cart, it is a rolling billboard for the solicitation of business or customers that clearly qualifies as a commercial vehicle. b) Respondents claim that if their golf cart is considered a commercial vehicle because it contains advertising, then the Association is engaging in selective enforcement of The Rules, because every vehicle has advertising on it, in the form of the name of the manufacturer, and many vehicles also bear the name of the dealership where they were purchased. Additionally, Respondents claim that many other vehicles have advertising on them such as bumper stickers and window decals displaying the Page 6 of 10

7 names of sports teams and franchises, colleges and universities, local businesses, and the like. Respondents have provided no specific examples of other vehicles bearing signage referring to other local businesses that they consider comparable to the signage on their vehicles, and against which the Association is not enforcing The Rules. Rule 61B (3), Florida Administrative Code, requires a respondent to provide all examples of selective enforcement upon which the respondent depends, including the units, name(s) of unit owner(s), how long the violations have existed, and whether the board knew of the violation(s). The remainder of this affirmative defense is without merit, as no reasonable person viewing the undisputed photographic likenesses of Respondents vehicles could possibly consider the advertising displayed thereon as comparable to car manufacturer s and dealer s logos, or bumper stickers, window decals, magnets, etc. expressing loyalty to a favorite sports team, college or university. c) Respondents claim that the Association is attempting to retroactively enforce a 2014 rule against them. Since the rule prohibiting commercial vehicles dates back to the original October 7, 2002 Declaration of Condominium, Respondents affirmative defense that the rule is being retroactively applied as to their vehicles is without merit. d) Respondents assert that their mini-van, if it is a commercial vehicle, which they claim it is not, was only parked on the property temporarily for one weekend, and was removed in response to the Association s pre-arbitration notice. Based upon discussion at the case management conference, the Association acknowledges that the mini-van has not been parked on the condominium property since the Association sent its pre-arbitration notice. Page 7 of 10

8 e) Respondents claim that Respondent Catalina Calinescu 2 is not a proper party to this action because she does not own or control the subject golf cart, which is owned solely by her husband, Cornell Calinescu, and she has no legal authority to control where her husband parks it. While it may be true that Mrs. Calinescu cannot control where her husband chooses to park his golf cart, she has not denied that she is a co-owner of the condominium unit. Rule 61B (1), Florida Administrative Code, states, in pertinent part: If the petition may directly affect the particular interests of a non-party unit owner, the unit owner shall be made a party to the proceeding. It is foreseeable that the outcome of this arbitration proceeding, based upon the petition, may affect Mrs. Calinescu s interests. Therefore, she is an appropriate party. Respondents have raised no legally cognizable defenses to the petition, other than that their mini-van is not normally parked on the condominium property, that it was only parked on the condominium property for one weekend, and that it has not been returned since Respondents received the Association s pre-arbitration notice. The Association does not deny this defense. Therefore, the undersigned arbitrator finds that the allegations in the petition as to parking the mini-van are moot, since Respondents provided the relief requested prior to the filing of the petition. The undersigned arbitrator finds that Respondents golf cart is a commercial vehicle due to the advertising signage affixed to it. Based upon the foregoing, it is ORDERED: 1. The allegations in the petition as to parking the mini-van are dismissed as MOOT. 2. Respondent's defenses are DENIED. 2 The given name of Mrs. Calinescu used in the answer to the petition differs from the name used in the petition. However, there has been no request to amend the case style from either party. Page 8 of 10

9 3. The following relief requested by Petitioner is GRANTED: Respondents shall immediately cease parking the golf cart on the condominium property unless all of the signage is removed. DONE AND ORDERED this 1 st day of August, 2014, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Suite 16 Tallahassee, Florida Telephone (850) Facsimile (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 , F.A.C. Certificate of Service appears on the following page. Page 9 of 10

10 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 1 st day of August, 2014: Laura M. Manning-Hudson, Esquire Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A Palm Beach Lakes Blvd. Suite 500 West Palm Beach, FL Fax: (561) Attorney for Petitioner Celena R. Nash, Esquire Glazer & Associates, P.A. One Emerald Place, Suite Stirling Road Hollywood, Florida Fax: (954) Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Page 10 of 10