STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DIPLOMAT GOLF AND RACQUET CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2012-03-7906 Case No. 2012-04-0529 UNIT OWNERS VOTING FOR RECALL, Respondent. / ORDER CONSOLIDATING CASES AND FINAL ORDER OF DISMISSAL Consolidation of Cases On September 5, 2012, Diplomat Golf and Racquet Club Condominium Association, Inc. (the Association) filed a Recall Arbitration Petition, Arb. Case No. 2012-03-7906, naming Unit Owners Voting for Recall as Respondent. On September 21, 2012, the Association filed a second Recall Arbitration Petition, Arb. Case No. 2012-04-0529. Both cases involve the recall of board members of the board of directors of the Association. Pursuant to Rule 61B-50.105(6), Florida Administrative Code, for judicial economy the two cases are consolidated. Vacating Order Allowing Answer in Arb. Case No. 2012-04-0529 In Arb. Case No. 2012-04-0529, and Order Allowing Answer was entered on September 27, 2012. Based upon this Order, an Answer is not necessary and the Order will be vacated. 1
Final Order of Dismissal Procedural History The Recall Arbitration Petition in Arb. Case No. 2012-03-7906 (first recall) was filed on September 5, 2012. On September 11, 2012, an Order Allowing Answer was entered. On September 12, 2012, Petitioner filed a Notice of Filing Supplement Documentation and First Notice of Annual Meeting and Election. On September 26, 2012, Respondent filed a Motion to Dismiss the Petition alleging the condominium, [I]s not regulated under the requirements of Chapter 718, Florida Statutes, and the Division therefore lacks regulatory jurisdiction over the Diplomat. Jurisdiction In the case at hand, the Declaration clearly designates the condominium as nonresidential. Section XXX of the Declaration of Condominium states, as follows: Under current zoning regulations of the City of Hallandale, permanent occupancy of a Unit is not permitted. Occupancy of the Unit shall be in accordance with applicable law. Prior recall arbitration cases consistently have held that a recall dispute involving a non-residential condominium is not subject to arbitration under the statue. See, e.g., 2853 Executive Park Drive Condo. Ass'n, Inc. v. Unit Owners Voting For Recall, Arb. Case No. 2010-05-8262, Final Order of Dismissal for Lack of Jurisdiction (December 2, 2010). Pursuant to section 718.104(2), Florida Statutes, a. condominium is created by the filing and recording of a declaration. Therefore, whether a condominium is a residential condominium must be determined based upon the intent of the Declaration. Newsom Eye & Laser Center, Inc. v. 4710 Medical Arts Condo. Ass'n, Inc., Arb, Case No, 2012-00-6569, Final Order of Dismissal (February 13, 2012). Unless the 2
Declaration contains an ambiguity, parol evidence as to its intent may not be considered. Florida Moss Products Co. v. City of Leesburg, 112 So. 572 (Fla. 1927); Killearn Homes Ass'n, Inc. v.. Visconti Family Ltd. Partnership, 21 So. 3d 512 (Fla. 1st DCA 2009). Where a condominium s declaration limits occupancy of units to transient purposes while the condominium functions as a hotel, the condominium is not a residential condominium pursuant to Section 718.103(23), Florida Statutes. Daytona Beach Club Condo. Ass n, Inc. v. Miller, Arb. Case No. 2007-03-6407, Final Order of Dismissal (September 19, 2007)(where the condominium served as a hotel and the declaration provided that units shall be used only for transient, residential purposes and may not be utilized as a primary or permanent residence, the condominium was not a residential condominium). Therefore, the Condominium is not a residential condominium. 1 Arbitration cases have consistently held that recalls involving non-residential condominiums are not eligible for arbitration. Bayside at Sandestin Condo. Ass n, Inc. v. Unit Owners Voting for Recall, Arb. Case No. 2010-04-6078, Final Order of Dismissal (October 5, 2012) and Sumrall v. 355 Office Building Condo. Ass n, Inc., Arb. Case No. 97-0363, Final Order of Dismissal for Lack of Jurisdiction (September 15, 1997)(recall dispute involving a condominium containing no residential units is not eligible for 1 Chapter 509 of the Florida Statutes regulates public lodging establishments, including resort condominiums. Section 509.242(1)(c), Florida Statutes, defines resort condominium as follows: Resort condominium.--a resort condominium is any unit or group of units in a condominium, cooperative, or timeshare plan which is rented more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented for periods of less than 30 days or 1 calendar month, whichever is less. 3
arbitration). Therefore, the disputes in the instant matter are not within the arbitrator s jurisdiction. consolidated. Based on the foregoing, it is ORDERED: 1. Arb. Case No. 2012-03-7906 and Arb. Case No. 2012-04-0529 are 2. The September 27, 2012 Order Allowing Answer in Arb. Case No. 2012-04-0529 is VACATED. 3. Arb. Case No. 2012-03-7906 and Arb. Case No. 2012-04-0529 are DISMISSED for lack of jurisdiction. DONE AND ORDERED this 1 st day of October, 2012, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Telephone: 850.414.6867 FAX: 850.487.0870 4
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 1 st day of October, 2012: Kristy L. Phillips, Esquire Glazer & Associates, P.a. 3113 Stirling Road, Suite 201 Ft. Lauderdale, Florida 33312 FAX: 954-333-3983 Jason Klein, Esquire Bales Sommers & Klein, P.A. 2 S. Biscayne Blvd., Suite 1811 Miami, Florida 33131 FAX: 305-372-9008 Tonya S. Chavis, Arbitrator 5