STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WEKIVA HUNT CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No JAMES M. MILLETT Respondent. / FINAL ORDER OF DISMISSAL Procedural History On April 13, 2009, Petitioner, Wekiva Hunt Club Condominium Association, Inc. (Association) filed a Mandatory Non-Binding Arbitration Form Petition, naming James M. Millett as Respondent. 1 The Association alleged that Respondent was in violation of Article 13.1(C) of the Declaration of Condominium, [b]y altering the electrical system serving his unit by modifying the electrical system to permit him to turn off the exterior lighting on the common element and/or limited common element walkways. On April 24, 2009, an Order Requiring Answer was entered. On May 18, 2009, an Answer was filed. On June 1, 2009, Petitioner s Counsel filed a letter requesting a Case Management Conference. 1 Subsequently, the Division of Florida Condominiums, Timeshares, and Mobile Homes, Department of Business and Professional Regulation, State of Florida, received a petition for declaratory statement from James M. Millett, Petitioner/Owner, In Re: Wekiva Hunt Club Condominium Association, Inc., Docket No The petition sought the agency s opinion as to [w]hether [the] Wekiva Hunt Club Condominium Association, Inc. must assess the cost of electricity for an exterior walkway light connected to a unit s electrical panel as a common expense against all of the unit owners in their proportionate shares under sections (4), (1), and (2)(a), and (1)(a), Florida Statutes. 1

2 On June 12, 2009, a Notice of Case Management Conference was entered. On June 25, 2009, a telephonic case management conference was held. During the case management conference the parties confirmed that Respondent has restored the electrical connection from the Respondent s unit to the light fixture located on the common elements and/or limited common elements. 2 There is no dispute that the light fixture was installed and wired by the developer or builder at the time the condominium units were built 3 ; that the Association is responsible for maintaining the fixture; and that the Association s Declaration of Condominium and other governing documents do not specifically discuss the lighting of the walkways. The only remaining issue is limited to determining whether the Association or the Respondent is responsible for the payment of the electric bill associated with the light fixture that is wired to Respondent s unit. This order is entered after consideration of the case management conference, a review of the entire file, and consideration of state statutes, division rules, and Florida case law. Analysis There is no dispute that Respondent has restored the electrical wiring from the exterior light to his unit. As Respondent has acquiesced to the relief requested by the Petitioner, this issue is MOOT. 2 The parties agree that as part of a unit s electrical consumption, approximately 1/3 of the units in this 126 unit condominium are wired so that one external light along the walkway is attached to the units electrical systems. The parties agree that the lights and their electrical connections are in accordance with all applicable building, electrical and life safety codes, such that the system is not illegal and does not constitute a construction defect. 3 There is a dispute between the parties whether this system was the intent of the developer or a builder s or subcontractor s way to cut costs by completing the least amount of wiring possible, however, a determination of intent is not necessary for this case. 2

3 The parties agree that the only disputed issue remaining relates to the cost of the electricity for the exterior walkway light. In the petition, the Association alleges the following: In order for the Association to cease relying on the individual unit owners to pay to light the walkway, [the] Association would have to rewire all of the approximately forty (40) lights along the walkway, and either install new equipment or modify existing equipment to which the lights could be attached in order for the lights to be metered to an electric utility account standing in the name of the Association. [Emphasis supplied] As relief, in pertinent part, the Association seeks restoration of the electrical system 4 and a final order: [D]eclaring the rights of the parties to this proceeding, and in particular whether Respondent is required to continue paying for the electricity for the lighting connected to Respondent s individual electrical service In his answer, Respondent alleges the following: There are multiple resolutions to this issue beyond the rewiring of all community walkway lights to new meters under an account for the Condo. Asso., including, but not limited to, a credit to each affected unit owner in Association fees. *** [T]he cost to a single unit owner for the electricity of this exterior light, although they are not the sole beneficiary of the illumination, is in violation of Fla. Stat (1). *** The cost to a single unit owner for the electricity of the exterior light in its current condition, although they are not the sole beneficiary of the illumination and do not have exclusive use of this light nor control over its use, is the charge of a use fee in violation of Fla. Stat (4). Petitioner has failed to acknowledge resolutions to this matter, beyond the allegations in paragraph 8(E)(m) of its Complaint, which include, but are not limited to, a credit to each affected 4 The parties agree that the electrical system has been restored by a licensed electrician. 3

4 unit owner in Association fees, a re-wiring of the community lighting in phases along with a credit to each affected unit owner, a discount in annual fees owed by the affected unit owners and any other reasonable resolutions. The wiring of these exterior lights in their current condition is discrimination of the current affected owners in having to pay additional monies beyond that of the monthly expenses to pay for the operation of a light which is treated as a common element by the Condo. Assoc. [Emphasis supplied] Section , Florida Statutes, in pertinent part, provides that any disagreement primarily involving the levy or collection of an assessment is not eligible for arbitration. In Villorin v. The Village of Kings Creek Condo. Ass n, Inc., 789 So.2d 1157 (Fla. 3d DCA 2001), the court concluded that if there had been no special assessment the plaintiffs would not have brought the action and, therefore, the disagreement primarily involved the levy of an assessment. As the remaining material issue in dispute is solely related to who is responsible for the cost of the electricity used for illumination, the Association or the individual unit owner, this matter is based upon an assessment and is not within the jurisdiction of the arbitrator. Based upon the foregoing, it is ORDERED: 1. Petitioner s request for an order requiring Respondent to restore the wiring is hereby dismissed as MOOT. 2. Petitioner s request for an order determining whether the Association or the unit owner is responsible for the cost of the electricity used for the illumination of the exterior lights wired to individual units is DISMISSED and the parties may pursue their dispute in a court of competent jurisdiction. 4

5 DONE AND ORDERED this day of June, 2009, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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 I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this day of June, 2009: James E. Olsen, Esquire Wean & Malchow, P.A. 646 East Colonial Drive Orlando, Florida John Douglas Daw, Esquire Daw, Lorenz & Associates, PLLC P.O. Box 4791 Sanford, FL Tonya S. Chavis, Arbitrator 5