STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SAN MARINO BAY CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2008-04-3673 DAVID J. HILL, Respondent. / IN RE: PETITION FOR ARBITRATION SAN MARINO BAY CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2008-06-5672 DAVID J. HILL, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in these consolidated cases on September 17, 2009. During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and crossexamined witnesses. The parties have filed post-hearing memoranda and affidavits. This order is entered after consideration of the complete record. 1
Appearances For the Association: Francis E. Friscia, Esquire Meirose & Friscia, P.A. 5550 W. Executive Drive, #250 Tampa, FL 33609 For the Respondent: Francis M. King, Esquire 233 Grand Blvd. Tarpon Springs, FL 34689 Statement of the Issues 1. Whether Respondent, in violation of the condominium s governing documents, modified the common elements by placing wall hangings on the exterior walls and loggia 1 area of the building in which he lives. 2. Whether Respondent, in violation of the condominium s governing documents, modified the common elements by removing and replacing the handrails on his balcony. 3. Whether Respondent, in violation of the condominium s governing documents, modified the common elements by installing a solid roof on the pergola 2 located outside his unit. 4. Whether Petitioner is barred from pursuing relief against Respondent due to the defenses of estoppel or selective enforcement. 1 A loggia is a roofed but open gallery or arcade along the front or side of a building, often at an upper level. The American Heritage Dictionary, (Second College ed., Houghton Mifflin Company 1991). 2 A pergola is [a]n arbor or passageway with a roof of trelliswork on which climbing plants are trained to grow. Id. 2
Findings of Fact 1. San Marino Bay Condominium Association, Inc. (the Association) is the corporate entity responsible for the operation of the San Marino Bay Condominium (the Condominium). 2. David J. Hill (the Respondent) owns unit 102 at the Condominium. 3. At the final hearing, the following individuals gave testimony: James Doubek, past president of the Association; Jody DeJute, current president of the Association; Ron Trowbridge, current property manager of the Condominium; Selest Luccioni, former board member of the Association; Respondent David J. Hill; and J.C. Eckstein, former property manager of the Condominium. 4. It is undisputed that Respondent: (a) placed wall hangings on the exterior walls and loggia area of the building in which he lives; (b) replaced the handrails on his balcony; and (c) installed a solid roof on the pergola located outside his unit. 5. During the time that Respondent placed the wall hangings, replaced the handrails, and installed the solid roof on the pergola, J.C. Eckstein was the property manager of the Condominium. 6. Respondent testified that, prior to taking any action, he sought permission from J.C. Eckstein to place the wall hangings, replace the handrails, and install the solid roof on the pergola. Respondent did not personally fill out an architectural request form or other written request for approval of these activities. 7. J.C. Eckstein testified that he filled out two architectural request forms on Respondent s behalf, one for approval of the placement of the wall hangings and one for approval of replacement of the handrails. Mr. Eckstein stated he submitted the architectural request forms to James Doubek, who was president of the Association at the 3
time, during a meeting at Mr. Doubek s home. Mr. Eckstein testified that Mr. Doubek approved the requests. Mr. Eckstein stated that he subsequently gave copies of the written approvals to Respondent and kept copies for the Association s records. 8. Mr. Eckstein testified he did not fill out an architectural request form for the installation of the solid roof on the pergola, and no approval of any kind was obtained for this activity. 9. At the final hearing, Respondent was unable to produce a copy of any approved architectural request forms. In fact, Respondent s testimony conflicted with Mr. Eckstein s on this issue as Respondent stated that he was never provided with any written approval, he was merely informed of the approval by Mr. Eckstein. 10. Ron Trowbridge, current property manager of the Condominium, testified that he had reviewed the Association s file for Respondent s unit and found no approved architectural request forms. Mr. Trowbridge also stated that Respondent s unit is the only one with a pergola. There was testimony that the pergola was built by the Condominium developer as a sales aid. As built by the developer, the pergola had a lattice-type open roof. 11. James Doubek, past president of the Association, testified that he never met with Mr. Eckstein to discuss approval of Respondent s placement of the wall hangings and replacement of the handrails. Therefore, he stated that he never gave approval for these items. This directly contradicts Mr. Eckstein s testimony. 12. Mr. Doubek further testified that there was a process for approving a request by a unit owner for an architectural change and that it was the responsibility of the entire 4
board of directors to approve or deny the change. Mr. Doubek stated that Mr. Eckstein was never given permission to approve architectural change requests on his own. 13. Mr. Doubek stated that Respondent never appeared at a board meeting to request approval for placement of the wall hangings, replacement of the handrails and installation of a solid roof on the pergola. 14. Jody DeJute, current president of the Association, testified that the Association s records contain no written requests from Respondent to place the wall hangings, replace the handrails, or install the solid roof on the pergola. Furthermore, the minutes of meetings of the Association s board of directors contain no reference to a request from Respondent to place the wall hangings, replace the handrails, or install the solid roof on the pergola. 15. Respondent testified that other people have wall hangings outside their units. However, Respondent did not identify these units or the unit owners. There was no evidence as to how long the wall hangings had been there or whether the board knew of the existence of the wall hangings. 16. Respondent did not introduce photographs or other evidence to support his testimony that other people have wall hangings outside their units. 17. Jody DeJute and Ron Trowbridge both testified that placement of exterior wall hangings violates the Association s governing documents. 18. As to Respondent s placement of the wall hangings and replacement of the handrails, the testimony at the final hearing is in conflict because Mr. Eckstein testified that he obtained written approval for these modifications from Mr. Doubek. However, Mr. Doubek specifically denied this. Furthermore, Mr. Eckstein testified he gave Respondent a copy of the signed approval, but Respondent contradicted his own witness by stating 5
that he only received verbal approval from Mr. Eckstein. Based on the facts that: (a) there was testimony that it was the responsibility of the entire board of directors, not just the president, to approve or deny an architectural change; (b) Mr. Eckstein was never given permission to approve architectural change requests on his own; (c) the Association has no record of any approval provided to Respondent to place the wall hangings and replace the handrails; and (d) Respondent did not produce any documentary evidence of Association approval to place the wall hangings and replace the handrails, the arbitrator finds that Respondent did not obtain Association approval to place the wall hangings and replace the handrails. 19. As to the installation of the solid roof on the pergola, Mr. Eckstein testified that he did not fill out an architectural request form for modification of the pergola and no approval was obtained for this activity. Respondent again contradicted his own witness by testifying that he received verbal approval from Mr. Eckstein to install the solid roof on the pergola. Based on the facts that: (a) Mr. Eckstein denied that he obtained Association permission for Respondent to install the solid roof on the pergola; (b) the Association has no record of any approval provided to Respondent to install the solid roof on the pergola; and (c) Respondent did not produce any documentary evidence of Association approval to install the solid roof on the pergola, the arbitrator finds that Respondent did not obtain Association approval to install the solid roof on the pergola. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to 718.1255, Fla. Stat. Due to his ownership of a unit at the Condominium, the Respondent must comply with the Condominium s governing documents. 6
The petitions allege that Respondent, by placing wall hangings on the exterior walls and loggia area of the building in which he lives, replacing the handrails on his balcony, and installing a solid roof on the pergola located outside his unit, violated Article X of the Declaration of Condominium. In pertinent part, Article X, Section B (4) provides that the responsibilities of a condominium unit owner are Not to paint or otherwise decorate or change the appearance of any portion of the exterior of the building, including balconies, patios or terraces, or any stucco portion of the Unit. Furthermore, Article X, Section B (6) requires that a unit owner first obtain Association approval before making any alterations to the building. As set forth above, Respondent admits to having (a) placed wall hangings on the exterior walls and loggia area of the building in which he lives; (b) replaced the handrails on his balcony; and (c) installed a solid roof on the pergola located outside his unit. As justification for his actions, Respondent alleges the defenses of estoppel and selective enforcement. Respondent bears the burden of proving his affirmative defenses. Killearn Acres Homeowners Association, Inc. v. Keever, 595 So. 2d 1019, 1021 (Fla. 1st DCA 1992); Sea Breeze South Apartments Condo., Inc. v. Beck, Arb. Case No. 00-1734, Final Order (May 17, 2002). To establish estoppel, Respondent must demonstrate the following: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reasonable reliance on that representation; and (3) a change in position to Respondent s detriment by the representation and reliance. Energren v. Marathon Country Club Condo. Ass n, Inc., 525 So. 2d 488 (Fla. 3d DCA 1988). Respondent contends that the first element of the estoppel test is satisfied because the Association, through its property manager, J.C. Eckstein, represented to him the material fact that the Association 7
president had approved the placement of the wall hangings, replacement of the handrails and installation of a solid roof on the pergola. However, as set forth above, the arbitrator finds due to the conflicting testimony of the witnesses and the fact that Respondent did not produce any documentary evidence of Association approval, that Respondent did not meet his burden of proving that the Association, through Mr. Eckstein or otherwise, represented to him that approval was obtained. See Curci Village Condominium Association, Inc. v. Maria, 14 So. 3d 1175 (Fla. 4 th DCA 2009). Having determined that Respondent did not successfully prove the first element of an estoppel defense, it is unnecessary to analyze whether Respondent can satisfy the other two elements. Respondent s remaining defense is selective enforcement. Selective enforcement is established if the facts show that the association is enforcing a restriction against one unit owner while allowing other unit owners to violate the same restriction, and an association may not enforce restrictions in a selective or arbitrary manner. White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979). Selective enforcement will not be found absent a showing that the subject violation was comparable to the type of violation which the association has failed to enforce. Scarfone v. Culverhouse, 443 So. 2d 122 (Fla. 2d DCA 1983). Furthermore, Fla. Admin. Code R. 61B-45.019(3), requires that: [t]he defense of selective enforcement shall contain all examples of selective enforcement upon which the respondent depends, shall indicate the unit(s) to which each example pertains, shall identify the unit owners, how long the violation has existed, and shall indicate whether the board knew of the existence of the violation(s). As set forth above, Respondent failed to identify the units or the unit owners cited as examples of selective enforcement. Additionally, there was no evidence as to how long the examples of selective enforcement 8
had existed or whether the board knew of their existence. Accordingly, the arbitrator finds that Respondent did not meet his burden of proving the defense of selective enforcement. In summary, the arbitrator finds that Respondent did not obtain Association approval to place the wall hangings, replace the handrails, or install the solid roof on the pergola. Furthermore, Respondent did not prove that his actions were excused by the affirmative defenses of estoppel or selective enforcement. Based upon the foregoing, it is ORDERED: 1. Respondent is found to have violated Article X of the Declaration of Condominium by placing wall hangings on the exterior walls and loggia area of the building in which he lives, replacing the handrails on his balcony, and installing a solid roof on the pergola located outside his unit without the prior approval of the Association. 2. Within thirty (30) days of the date this order, the Respondent, at his own expense, shall remove the wall hangings on the exterior walls and loggia area of the building in which he lives and shall return the affected areas to the condition they were in prior to placement of the wall hangings. 3. Within thirty (30) days of the date this order, the Respondent, at his own expense, shall remove the handrails on his balcony and shall rebuild the handrails in the same form and style as the other units in the Condominium. 4. Within thirty (30) days of the date this order, the Respondent, at his own expense, shall remove the solid roof on the pergola located outside his unit and shall return the pergola to the condition it was in prior to the installation of a solid roof. 9
Florida. DONE AND ORDERED this 5 th day of February, 2010, at Tallahassee, Leon County, David R. Slaton, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Telephone (850) 414-6867 Facsimile (850) 487-0870 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 718.1255, Florida Statutes. As provided by section 718.1255, 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-45.048, F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 5 th day of February, 2010: Francis E. Friscia, Esquire Meirose & Friscia, P.A. 5550 W. Executive Drive, #250 Tampa, FL 33609 Attorney for Petitioner Francis M. King, Esquire 233 Grand Blvd. Tarpon Springs, FL 34689 Attorney for Respondent David R. Slaton, Arbitrator 10