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 GARY KREITMAN, Petitioner, v. Case No THE DECOPLAGE CONDOMINIUM ASSOCIATION, INC., Respondent. / FINAL ORDER Pursuant to notice, a formal hearing in this case was held before the arbitrator on June 7, 1999, by video conference; the parties participated from Miami, while the arbitrator conducted the hearing from Tallahassee. The petitioner/unit owner represented himself; the respondent/association was represented by Nancy Valcarce, Esquire, and David Rogel, Esquire. Both parties presented the testimony of witnesses and tendered documents and photographs into evidence, and both parties filed post-hearing memoranda. This order is entered after consideration of the complete record in this matter. Count one of the amended petition for arbitration alleges that the association materially altered the common elements of the condominium without the requisite vote of 75% of the voting interests when it replaced dark green carpet in the hallways with light beige carpet. 1 In its answer, the association contends that the carpeting which was replaced was frayed and damaged, denies that the color change was a material change 1 Count two of the amended petition was dismissed by order entered May 13, 1999, and will not be 1

2 and that the new carpet requires higher maintenance, and admits that the change in color was not approved by 75% of the voting interests. In defense, the association asserts that the replacement of the carpet was a necessary function of the board's repair and maintenance obligations and that the board exercised its business judgment. The association also argues that the dispute is barred by the doctrine of laches and that the unit owner has failed to mitigate damages. FINDINGS OF FACT According to testimony from the petitioner and his wife, the hallway carpet was a dark, teal green accented in a salmon or peach color at the time they purchased their units in the Decoplage Condominium in The green carpet faded to a lighter color over time, due, the unit owner believed, to excessive and improper cleaning methods. There was much discussion between the board and the condominium's unit owners with regard to replacing the green carpet. During the selection process, the board showed samples of various carpet colors to unit owners and informally solicited their input; however, it never showed the unit owners a sample of the particular carpet that was ultim ately purchased and installed. According to the petitioner, the new carpet which the board chose to install was a light beige color with a dark accent pattern, which was easily stained from foot traffic and luggage carts. Dr. Jover, a unit owner and board member, testified that the original carpets in the hallways, installed prior to the Kreitmans' purchase in 1993, were various colors, but that the primary color was beige with a dark accent pattern. He further testified that the association deliberately chose to replace the carpet with one very similar to the original addressed here. 2

3 (beige) carpet in pattern and color so that a unit owner vote would not be required. Another unit owner and board member, Mr. Gautier, testified that the developer laid various colors of hallway carpet in earlier times, some only temporarily; Mr. Gautier confirmed that the original carpet color was light beige. According to Mr. Gautier, the teal green carpet was "imprinted" rather than "woven," and that caused the carpet colors to bleed when it was cleaned. Because the association determined that the imprinted carpet was inferior and had a shorter life, it was decided that the new carpet should be the more durable woven type. The association spent two years researching the carpet issue; it sought professional advice and input from the unit owners. The association decided to purchase a solution-dyed carpet that was as close as possible to the original carpet in color and pattern (the beige with a dark accent), while being cost effective and having improved wearability. According to the association's witnesses, the maintenance required by the new carpet is comparable to that required by the teal green carpet. The weight of the evidence thus establishes that various colors of carpets were utilized in the hallways of the condominium in the early 1990s and that the primary original carpet was beige with a dark accent pattern. CONCLUSIONS OF LAW The association in this cause has the authority and the duty to maintain, repair, and replace the common elements, as needed. Sec (1), Fla. Stat.; Art. XVIII, Sec and 18.12, Declaration of Condominium. It is undisputed that the old hallway carpet was worn, faded, and frayed, and that its replacement was necessary in order to maintain or preserve the common elements. The issue, then, is whether the change in the color or type of carpet constituted a material alteration or substantial addition to the common 3

4 elements. Section (2), Florida Statutes, provides as follows: Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to the real property which is association property, except in a manner provided in the declaration. If the declaration does not specify the procedure for approval of alterations or additions, 75 percent of the total voting interests of the association must approve the alterations or additions. 2 A material alteration is a change that palpably or perceptively varies or changes the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance. Sterling Village Condo., Inc. v. Breitenbach, 251 So.2d 685, 687 (Fla. 4 th DCA 1971). Changing the exterior color scheme of a development from a multi-colored one to a uniform color has been found to meet the Sterling definition of a material alteration. Islandia Condo. Ass'n, Inc. v. Vermut, 501 So.2d 741 (Fla. 1987). However, when determining whether a particular alteration is material, the arbitrator m ay consider the original condition of the common element in question, and not merely the element's most recent condition. See, Senek v. The Riverside Club of Ft. Myers, Inc., Arb Case No , Summary Final Order (May 12, 1999) (Where unit owner protested installation of a pool heater after pool was without a working heater for an extended period of time, arbitrator rejected unit owner's argument that the absence of a pool heater had become status quo.) See also, Cundiff v. Flamingo Cay Apartments Ass'n, Inc., Arb. Case No , Final Order (May 19, 1998) (Association not required to obtain unit owner approval for installation of irrigation system where it established that sprinkler system had previously 2 Both parties agree that the declaration is silent on this matter, and that Section (2) thus controls. 4

5 existed on the condominium property.) 3 In the present case, the hallway carpet was dark, teal green at the tim e the petitioner and his wife purchased their condominium units. However, several colors of carpet were utilized by the developer in the early 1990s and the original carpet was, predominately, beige with a dark accent pattern. When the association decided to purchase and install a new beige carpet with a dark, diamond-like pattern, it actually restored the hallway flooring to its original appearance. The association's action did not, therefore, constitute a material alteration. The new carpet was manufactured by a different process and was expected to have a longer lifespan and greater cleanability. It is not unreasonable for an association to choose newer, improved materials when replacing common elements and this sort of "upgrade" does not trigger the statutory provision requiring a 75% vote of the voting interests. See, A. N., Inc. v. Seaplace Ass'n, Inc., Arb. Case No , Summary Final Order (Nov. 19, 1998) (Association's decision to replace all windows at the same time with a more wind-resistant model was not a material alteration requiring vote of unit owners. Board "could and should take advantage of changes in technology, building materials, and improved designs" when replacing dilapidated common elements.) Based upon the foregoing, it is concluded that the association was not required to obtain approval of 75% of the voting interests in order to replace the hallway carpet. Therefore, it is ORDERED: 3 But see, Flynn v. St. Regis Ass'n of Sarasota, Inc., Arb. Case No , Final Order (Apr. 28, 1997) (arbitrator held that the repainting of the condominium building from white to a non-white, two-tone color constituted a material alteration of the common elements requiring the approval of 75% of the voting interests, where building had at all times previous been painted white.) 5

6 The relief requested by the petitioner, a determination that the association was required to obtain the approval of 75% of the total voting interests in order to replace the green hallway carpet with beige carpet and an order requiring the association to change it back, is DENIED. Florida. DONE AND ORDERED this 30 th day of July, 1999, at Tallahassee, Leon County, Catherine Cowal, Arbitrator Dept. of Business and Professional Regulation Condominium Arbitration Section 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. 6

7 CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to Gary Kreitman, M.D., 7226 SW 146 th Street Circle, Miami, Florida 33158, to David H. Rogel, Esquire, 5201 Blue Lagoon Drive, Suite 100, Miami, Florida 33126, to Nancy C. Valcarce, Esquire, 1390 Brickell Avenue, 3rd Floor, Miami, Florida 33131, and to Helio De La Torre, Esquire, 201 Alhambra Circle, Suite 1102, Coral Gables, Florida 33134, this the 30 th day of July, Catherine Cowal, Arbitrator 7