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 MORTON VILLAGE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No ROBERT F. LUCAS, Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to dispose of a case summarily if no disputed issues of material fact exist and no meritorious defenses have been presented. The arbitrator has jurisdiction over this matter pursuant to Section , Florida Statutes. On November 19, 1997, Morton Village Condominium Association, Inc. (petitioner or association) filed a petition for arbitration. The association alleges that Robert F. Lucas parks two non-conforming motor vehicles on the condominium property (a Dodge Ram Van and a Dodge Caravan), in violation of Article Five, Section Eight, Paragraph J of the condominium bylaws (as amended March 31, 1981), which provides that no resident shall park anything other than a conventional passenger automobile on the condominium property... and in violation of a board rule which prohibits the parking of vans. The respondent (unit owner) filed his answer on February 27, He denies 1

2 that his vehicles are in violation of the documents, stating that the vehicles are indeed conventional passenger automobiles and are classified as station wagons (which presumably are considered by the respondent to be conventional passenger automobiles) on the titles issued by the Florida Department of Highway Safety and Motor Vehicles. He also asserts that the action is moot as to the Dodge Ram Van, which was sold prior to the initiation of the arbitration proceeding. Additionally, the respondent asserts that the rule prohibiting vans is not valid because it modifies the declaration (presumably meaning that it interferes with a right set forth in the declaration or which can be reasonably inferred from the declaration), that it was not properly adopted by the board, and that it is arbitrary and vague and not reasonably related to the promotion of the health, happiness and peace of mind of the unit owners. The respondent also alleges that the rule is arbitrary in its application (presumably meaning that it is selectively enforced). Both parties filed rather extensive supplemental information upon the request of the arbitrator, including photographs of the respondent s vehicle and of vehicles belonging to other unit owners for which the association has given parking approval. It is undisputed that the respondent parks a Dodge Caravan on the condominium property and that the Dodge Ram Van was sold prior to the initiation of the arbitration proceeding; thus, the issue of the Dodge Ram Van is moot. The Dodge Caravan in question is a 1991 model, white, fully windowed (360º) vehicle with front, middle, and rear seating for passengers, interior upholstery and carpeting, and a sliding door on the side for passengers to enter/exit. It is classified by the State of Florida Division of Motor Vehicles as having a body type SW (station wagon) and a Tax Class Code 3 2

3 (passenger car 3,500 lbs. and over). The vehicle bears no exterior signage or other commercial advertisements besides the vehicle manufacturer s name and/or logo. It has no ladder racks or similar features that are typically associated with vehicles used for commercial purposes. Unlike many passenger vans which have a box-like appearance, the shape of this vehicle is somewhat similar to that of a large station wagon insofar as the body is low and elongated, and the slope of the hood is almost horizontal. The association s claim that the respondent waived his right to contest the bylaw and policy by signing an application which notified him of the restrictions is STRICKEN as irrelevant. The fact that the respondent signed an application to occupy a unit in which he agreed to be bound by the association s bylaws and rules does not require him to be bound by an invalid bylaw or rule. See Hillcrest East No. 26, Inc. v. Weinberg, Arb. Case No , Summary Final Order (March 26, 1997). Was the Rule properly adopted by the board? Turning to the respondent s defenses, the first issue is whether the association properly adopted the rule prohibiting vans. According to the association, on November 2, 1981, the board voted to adopt a resolution regarding permissible vehicles. The resolution stated: The following types of vehicles be (sic) prohibited from parking on Association property: vans, with and without windows, motorcycles, boats, boat trailer, recreational trailer, campers, jeeps, trucks, derelict vehicles of any kind, and any other type of vehicle that is not a conventional passenger automobile. The association alleges that the resolution became a Board policy which was subsequently set forth in writing and given to prospective residents along with other 3

4 rules and regulations, in a document which stated, in pertinent part: The following are excerpts from the Rules and Regulations of Morton Village Condominium Association. These excerpts are provided to all prospective owners and renters to insure that the quality of life is maintained at or above the standards expected by all residents.... (16) Only conventional automobiles may be parked on the condominium property. All automobiles shall be parked in the space furnished for that purpose. Vans, trucks, boats, motorcycles and all pleasure vehicles are not permitted to be parked by residents. NO CAR COVERS ALLOWED. (Emphasis supplied.) The rule was not recorded, nor was it made a part of the condominium regulations which constitute Exhibit 5 to the declaration. The Morton Village declaration of condominium states, in Article XIV, Section (f): Uniform reasonable regulations concerning the use of condominium property may be adopted, amended and rescinded from time to time by the association as provided in the bylaws.... The regulations shall not conflict with the declaration or bylaws. The initial regulations are attached to the declaration as Exhibit 5, but are not a part of it. (Emphasis supplied.) The Morton Village declaration of condominium states, in Article XX: AMENDMENT Except as provided elsewhere, a resolution for the adoption of an amendment may be proposed by the board of directors or an owner or a person authorized to cast the vote attributable to a unit. Members not present in person or by proxy at the meeting considering the amendment may express their approval or disapproval in writing if it is delivered to the secretary at or before the meeting. The amendment must be approved by persons entitled to vote the ownership of at least 65% of the common elements. (Emphasis supplied.) The bylaws of the Morton Village Condominium Association, Inc. state, in Article 4

5 1, Section Three: The governing board shall have the powers and duties necessary for the administration of the affairs of the condominium, and may do all such acts and things as are not by law, by the declaration, or by these bylaws directed to be exercised and done by the unit owners. The powers and duties to be exercised by the governing board shall include, but shall not be limited to the following:... (c) Adoption, distribution, amendment, and enforcement of rules governing the use and operation of the condominium and the use of the common elements, subject to the right of a majority of unit owners to change any such rules. (Emphasis supplied.) The bylaws of the Morton Village Condominium Association, Inc., state, in Article Eleven, Section One: Amendments These bylaws may be amended or supplemented by the vote of unit owners entitled to exercise fifty-one (51%) percent or more of the total voting power of the association at a meeting of unit owners duly called and held for such purpose, but only with the written approval of those mortgagees holding mortgages constituting first liens on ten or more units. Any amendment or supplement shall be filed for record in the office in which these bylaws are recorded. In summary, the declaration gives the board authority to adopt uniform reasonable regulations concerning the use of condominium property, via the method provided for in the bylaws. The bylaws state that the powers and duties to be exercised by the governing board shall include adoption, distribution, amendment, and enforcement of rules governing the use and operation of the condominium and the use of the common elements, subject to the right of a majority of unit owners to change any such rules. The bylaws do not state that board-made rules must be made a part of the condominium regulations which constitute Exhibit 5 to the declaration, nor that they must be recorded. In this case, the board adopted a resolution to restrict the parking of 5

6 certain vehicles, made the resolution a policy, renamed it a rule, printed it, and distributed it to residents and would-be residents of the condominium, including the respondent. As such, the board has complied with the provisions contained in the declaration and the bylaws regarding the making of board rules. Does the Rule conflict with the Declaration or the Bylaws? The declaration of condominium of the Morton Village Condominium Association, Inc., contains only a brief reference to parking. The declaration states, in Article VIII, Section (c): Use and enjoyment of the following common elements is limited to the owners designated: (1) Automobile parking spaces to the owners specified by the association The bylaws of the Morton Village Condominium Association, Inc., as amended March 31, 1981, state, in Article Five, Section Eight, Paragraph (j): (10) No resident shall park anything other than a conventional passenger automobile on the condominium property. All automobiles shall be parked in the space furnished for that purpose. This amendment to the bylaws states on its face that it was upheld by an affirmative vote of more than fifty-one percent (the requisite percentage) of all voting rights of all members of the Morton Village Condominium Association, Inc. The bylaws and rules/regulations of a condominium may not contravene either an express provision of the declaration or a right reasonably inferable therefrom; such a bylaw or rule would have the effect of amending the declaration without going through the process necessary to amend it. S & T Anchorage, Inc. v. Lewis, 575 So.2d 696 6

7 (Fla. 3d DCA 1991), review denied, 626 So.2d 2107 (Fla. 1993); Beachwood Villas Condominium v. Poor, 448 So.2d 1143, 1145 (Fla. 4th DCA 1984). In this case, the declaration does not address the types of automobiles that may be parked on the premises by unit owners. Rather, it simply says (in paraphrase) that common element parking spaces may be used for automobile parking by those unit owners specified by the association. The term automobile is not defined in the declaration. The rule provision restricting parking to conventional automobiles and prohibiting vans, trucks, boats, motorcycles and all pleasure vehicles, etc., elaborates on the phrase automobile parking as used in the declaration. However, prior arbitration cases have held that where the declaration does not specifically address a particular subject, and the board is given authority to promulgate reasonable rules regarding unit use, a rule prohibiting a particular use entirely does not contravene either an expressed provision of the declaration or a right reasonably inferred therefrom. See The Lakes of Inverrary Condominium, Inc. v. Goldberg, Arb. Case No , Summary Final Order (October 5, 1993); and Hutchinson Island Club Condominium Association, Inc. v. Scialabba, Arb. Case No , Partial Summary Order (November 15, 1996) Both cases held that where declaration was silent on issue of pets, and board was given authority to promulgate rules regarding unit use, a rule prohibiting pets, or certain types of pets, was authorized. Likewise, a properly adopted rule restricting the types of vehicles that may be parked on condominium property is not invalid, where the declaration is silent on the subject of permitted vehicle types. However, the bylaws specifically state that the board may not adopt a rule that 7

8 conflicts with the bylaws. When board actions such as the promulgation of rules contravene or are otherwise inconsistent with the declaration, articles of incorporation or bylaws, generally the courts will hold that the board s actions fail absent a proper amendment of the provision that is being contravened. Barnett and Klein Corporation v. The President of Palm Beach A Condominium, Inc., 426 So.2d 1074 (Fla. 4th DCA 1983). Since the bylaws restrict parking to only conventional passenger automobiles, the question remains as to whether a rule prohibiting passenger vans conflicts with the bylaws. This depends on whether passenger vans are considered to be conventional passenger automobiles. Is the Respondent s vehicle a conventional passenger automobile? The association takes the position that the respondent s Dodge Caravan is not a conventional passenger automobile and offers in support of this theory the fact that the National Automobile Dealer s Association lists it in the truck section of its publication entitled Official Used Car Guide. The association submitted copies of selected portions of the N.A.D.A. Official Used Car Guide, which divides motor vehicles into 3 categories: (1) domestic cars (2) imported cars and (3) trucks. The publication does list the Dodge Caravan in the section entitled trucks. The association does not explicitly argue that respondent s van is a truck; rather, it argues that the Official Used Car Guide s listing of passenger vans in the truck section supports the association s contention that the respondent s van is not a conventional passenger automobile. The respondent countered this by submitting letters and documentation from the State of Florida Department of Highway Safety and Motor Vehicles, confirming the Department s policy of allowing passenger vans to be registered as station wagons if 8

9 they are under a certain weight and are used primarily for transporting passengers (the Department has no specific classification for mini-vans ). The respondent also submitted letters from two insurance companies indicating that mini-vans, such as the Dodge Caravan, which are used primarily for the transportation of passengers, are generally categorized for insurance purposes as station wagons. The respondent submitted a letter from the editor of another guide to used automobiles, the National Auto Research Black Book, which states that mini-vans are listed in the truck section of the used car guide for editorial reasons only, and that this listing is not meant to indicate that the vehicles actually have the same chassis or any other features as trucks. as: The American Heritage College Dictionary, Third Edition, defines automobile A self-propelled passenger vehicle that usually has four wheels and an internal-combustion engine, used for land transport. The same source defines truck as: Any of various heavy motor vehicles designed for carrying or pulling loads. It is concluded that the respondent s vehicle is not a truck, according to the above definition, as any load-carrying or load-pulling capacity it may possess is secondary; it is obviously designed for transporting passengers. The terms van and conventional automobile are not defined within any of the condominium documents. The American Heritage College Dictionary, Third Edition (1997), defines conventional as: Based on or in accordance with general agreement, use, or 9

10 practice; customary... Conforming to established practice or accepted standards; traditional.... The same source defines station wagon as: An automobile having an extended interior with a third seat or luggage platform and a tailgate. [Originally a covered wagon traveling from a train station to a hotel.] The same source defines van as: a. A box-like motor vehicle having rear or side doors and side panels esp. for transporting people. b. A covered or enclosed truck or wagon often used for transporting goods or livestock. The definitions of common objects often change over time, reflecting changes in the objects use. Twenty-two years ago, the word van was defined in Webster s New Collegiate Dictionary (1977) as: A usually enclosed wagon or motor truck used for transportation of goods or animals... The rule in question was promulgated in 1981, at a time when passenger vans were not a transportation option that was available to the public. 1 The vans of that era were large, box-like vehicles without side-windows or passenger seats, and were typically used commercially for light trucking and delivery purposes. These vans were also popular with some segments of the youth counter-culture of the day, as they could be easily and cheaply converted for use as camping vehicles by the introduction of a mattress into the back. The arbitrator takes official notice, pursuant to Rule 61B (6), Florida Administrative Code, of the fact that passenger vans (also known as mini-vans, or soccer-mom-vans ) are ubiquitous in today s society, and have replaced the large 1 Passenger vans were introduced to the market in the mid-1980s. 10

11 family station wagons of yesteryear. 2 According to an Associated Press article dated June 3, 1999, nearly one out of every two vehicles sold in the United States in 1999 was either a minivan, sports utility vehicle, or pick-up truck. 3 Here, the declaration does not specifically address the types of vehicles which may be parked. The bylaws state that only conventional passenger automobiles may be parked. The rule permits conventional automobiles but prohibits vans. Reading all the documents in conjunction with one another, and attempting to give effect to each part within each document, it is concluded that the use of the term van within the association s rule on parking, refers to the commercial type of non-passenger vans which were prevalent at the time the rule was drafted, and not to the passenger vans of today. By modern standards, respondent s passenger van is a conventional passenger automobile, the existence and banality of which could not have been foreseen by the drafters of the rule. Therefore, the respondent s vehicle is permissible under the rule. Interpreted in this manner, the rule is consistent with the bylaws, and does not need to be completely invalidated. Since it has been determined that the rule does not apply to passenger vans such as the respondent s, it is unnecessary to address the respondent s remaining affirmative defenses. The petitioner s motion to strike respondent s request for attorney s fees is DENIED. Rule 61B (1), Florida Administrative Code, states that any party 2 For an interesting and thought-provoking discussion of the political history of sports utility vehicles, minivans and pick-up trucks, their treatment vis a vis the Federal Environmental Protection Agency s emissions standards, and how they came to replace large family station wagons on the American scene, see Light Trucks Increase Profits But Foul Air More than Cars by Keith Bradsher, Copyright 1997, The New York Times, reprinted at: 3 Industry News 11

12 seeking an award of costs and attorney s fees in an arbitration proceeding must request the award in writing prior to the rendition of the final order. The respondent made a request for the award of prevailing party s attorney s fees in a motion filed on September 23, Therefore, the petitioner s motion to strike the respondent s request because such amounts were not requested in the answer to the petition is DENIED. Based on the foregoing, it is ORDERED: The relief requested by Morton Village Condominium Association, Inc., to enjoin the respondent from parking his Dodge Caravan on condominium property, is hereby DENIED. DONE AND ORDERED this 11 th day of June, 1999, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 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 12

13 APPEALABLE TO THE DISTRICT COURTS OF APPEAL. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 11 th day of June, 1999, to: JOHN F POPE ESQ TH ST W BRADENTON FL Attorney for petitioner TERENCE MATTHEWS ESQ TH ST W STE D BRADENTON FL Attorney for respondent Leslie O. Anderson-Adams, Arbitrator 13