STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION GEMINI CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2014-00-9959 JOSEPHINE BARATTO and STEVEN MONTEIRO, Respondent. / NOTICE OF REASSIGNMENT AND SUMMARY FINAL ORDER Notice of Reassignment The undersigned hereby gives notice that this case has been reassigned. Therefore, all future pleadings and other communications should be directed to the undersigned. Relevant Procedural History On March 10, 2014, Gemini Condominium Association, Inc. (the Association) filed a petition for arbitration against Respondents Josephine Baratto and Steven Monteiro, seeking an order ruling that the parking of Respondent s vehicle, a Nissan Titan pickup truck, is a violation of Article XVI, Section 6 of the Association s Declaration and Rule 7 of the Association s Rules and Regulations which prohibits the parking of trucks on condominium property. Additionally, the Association requested an award of attorney s fees and costs. 1
An Order Requiring Answer was entered on March 13, 2014. Respondents filed an answer on April 9, 2014. On June 2, 2014, a case management conference was held in this matter. On July 20, 2014, Respondent filed a Motion for Leave to Amend the Answer, Amendments to the Answer, Amended Exhibit List and a Proposed Summary Order. On June 23, 2014, Petitioner filed a Motion for Summary Order. On August 28, 2014, a Notice of Reassignment was entered. On September 30, 2014, a telephonic case management conference was conducted. After review of the pleadings and case file, there appears to be no disputed issues of material fact, therefore a summary final order is appropriate. Statement of the Issue Whether Respondent s 2006 Nissan Titan pickup truck is permitted to be parked in Respondents designated parking space at the condominium? Findings of Fact 1. The Association is the entity responsible for maintenance and operation of Gemini Condominium. 2. Respondent Josephine Baratto owns unit #1207 located on 336 Golfview Road, North Palm Beach, Florida 33408. Through her ownership of the unit, Ms. Baratto is a member of the Association and is subject to the Declaration of Condominium and the Rules and Regulations. 3. It is undisputed by the parties that Respondent Steven Monteiro resides in Respondent Baratto s unit, and as an occupant in the unit, is subject to the Association s governing documents. 2
4. It is undisputed by the parties that Respondent Monteiro is the owner of a Nissan Titan pickup truck and parks the truck in the parking space assigned to Respondent Baratto s unit. 5. On August 31, 2009, the Association issued Parking Permit #V-9487 for a Chevrolet Avalanche owned by a tenant who resides in the condominium and which permitted the Avalanche to be parked in the parking space assigned to the tenant s unit. 6. On September 17, 2013, the Association issued Parking Permit #D-5260 for Respondent Monterio s Nissan Titan which permitted the Titan to be parked in the parking space assigned to Respondent Baratto s unit. 7. On October 24, 2013, the Association notified Respondents that the parking permit for the Titan had been issued in error and that the truck should be permanently removed from Respondent Baratto s designated parking space within 30 days of the date of the letter. 8. Article XVI, Section 6 of the Declaration of Condominium, states, in pertinent part, as follows: No junk vehicle or other vehicle, on which current registration plates are not displayed, trailer, truck, camper, camp truck, house trailer, boat or the like shall be kept upon any of the general common elements [Emphasis added.] 9. At the time of the filing of the petition, Paragraph 7 of the Rules and Regulations, as revised in 2008, stated: No junk vehicles, vehicles, vehicle without a current license plate displayed, trailer, truck, motorcycle, camper, boat, motor home, house trailer or the like shall be kept upon the common elements, limited common elements or any parking space. Exception: Sports Utility Vehicles. 3
[Emphasis added.] 10. Respondents provided evidence of selective enforcement, consistent with Rule 61B-45.019(3), Florida Administrative Code, regarding the Chevy Avalanche. 1 11. The Chevy Avalanche is a pickup truck. Conclusions of Law The arbitrator has jurisdiction over this matter pursuant to Section 718.1255, Florida Statutes, to determine the authority of the board of directors to require the owner to take action involving the owner's unit or the appurtenances thereto. In the case at hand, the Association alleges Respondent Montinero s Titan pickup truck had been and was continuing to be parked in Respondent Baratto s designated parking space in violation of Article XVI, Section 6, of the Declaration of Condominium, and Paragraph 7 of the Rules and Regulations. In addition, the Association has asserted that the Chevy Avalanche which is permitted to be parked overnight on the Association s property is a SUV and not a pickup truck. Further, the Association admitted that a parking permit had been previously provided to Respondent Baratto for the pickup truck but stated that it had been issued in error and had been subsequently revoked. In their answer, Respondents admitted to parking the Titan in Respondent Baratto s designated parking space and raised the affirmative defense of selective enforcement with regard to the Association s permitting the overnight parking of the Avelanche. At the time the petition was filed, neither the Declaration of Condominium or the Rules and Regulations defined the terms truck and sports utility vehicles. Words of 1 Respondents identified the owner of the Chevy Avalanche and filed photographs of each vehicle, along with copies of each vehicle s registration. 4
common usage should be construed in their ordinary sense. Koplowitz v. Imperial Towers Condominium, Inc., 478 So. 2d 504 (Fla. 4th DCA 1985). When a term is not defined, it should be given its plain, natural, ordinary meaning. Abenky Realty Corp. v. Dade County, 185 So. 2d 777 (Fla 3d DCA 1966). DictionaryCambridge.org, defines pickup truck as: [A] vehicle with an open part at the back in which things can be carried. Chevrolet.com describes the Chevy Avalanche as a pickup truck: Avalanche is a pickup truck that was offered by Chevrolet from the 2002 2012 model years, and in 2013, as the Black Diamond Avalanche. With its split-folding rear bench seat down and the Midgate lowered, Avalanche offered the capability of a full-size pickup truck with the comfortable interior of an upscale SUV. The Avalanche is a pickup truck with an extended passenger compartment which, when the midgate (the rear window and wall behind the crew cab/passenger compartment) is lowered into the extended passenger area, forms a long flat bed or cargo box of a pickup truck. Prior cases have discussed the actual language of the declaration and whether a pickup truck is prohibited by that language. In Sabal Pines Condominium Association, Inc., v. Felling, Arb. Case No. 99-1326 Summary Final Order (November 1, 1999), the condominium declaration stated: k. Parking (1) Automobile parking spaces shall be used solely and exclusively for that purpose (2) Trucks of any kind, motorcycles, motorbikes, commercial vans, buses, boats are not permitted on Sabal Pines property at any time, (3) Exceptions: Family vans, campers, suburbans and visitor-owned Recreational Vehicles and other homes must always park in the unmarked general parking areas east of the buildings... 5
The arbitrator in Felling found that a Ford F-150 pickup truck was prohibited as it was a clearly a truck of any kind and therefore prohibited under that declaration. In Wakefield, the arbitrator ruled that the Avalanche is a pickup truck. The undersigned finds no reason to recede from these cases. Accordingly, the Avalanche is a pickup truck for the purposes of the parking prohibition. Selective Enforcement Selective enforcement is established if the facts show that the association is enforcing a restriction against one unit owner while knowingly allowing other unit owners to violate the same restriction. An association may not enforce restrictions in a selective or arbitrary manner. White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979). The defense of selective enforcement is an affirmative defense which is Respondents burden to prove. The Diplomat Apartment Association, Inc. v. Johnson Arb. Case No. 2006-01-5487, Final Order on Attorney s Fees and Costs (May 23, 2006). Rule 61B-45.019(3), Florida Administrative Code, states: The 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 owner(s), how long the violation has existed and shall indicate whether the boardknew of the existence of the violation(s). See also, Hillcrest East No. 22, Inc. v. Cohen, Arb. Case No. 2011-01-7146, Final Order (October 5, 2012); and Tavares Ridge Condominium Homeowners Association, Inc. v. McPhee, Arb. Case No. 2011-05-5552, Final Order (October 15, 2012). Finally, a respondent need only show a single instance of a similar violation to establish selective enforcement. Alameda Isles Homeowners Ass n., Inc. v. Ager, Arb. Case No. 2004-05- 6
8895, Final Order (August 22, 2005); and Cove Village Inc. v. Vendola, Arb. Case No. 2003-05-5193, Summary Final Order (October 9, 2003). Article XVI, Section 6, of the Declaration of Condominium, prohibits the keeping of a truck on the general common elements. Paragraph 7 of the Rules and Regulations, also prohibits the keeping of a truck on the common elements, but provides a specific exception for Sports Utility Vehicles (SUVs). It is undisputed between the parties that Respondents Nissan Titan is a truck and that trucks are not permitted to be parked in parking spaces assigned to units. It is undisputed by the parties that the Association has issued a permit to the owner of a Chevy Avalanche which authorizes the owner to park the vehicle on the condominium property. The Association asserts that the Chevy Avalanche is not a truck but is a sports utility vehicle. Sports utility vehicles are an exception to the truck prohibition pursuant to Paragraph 7 of the Rules and Regulations. Accordingly, as both vehicles are pickup trucks and both vehicles were previously issued permits for parking on the Association s property by the Association, Respondents have established the affirmative defense of selective enforcement of the Association s prohibition of overnight parking of pickup trucks on the Association s property. Accordingly, as the Association has not consistently acted to enforce the Declaration of Condominium and Rules and Regulations prohibiting the parking of trucks overnight on the Association s property or in parking spaces assigned to the units, the Association s request for relief must be denied. Accordingly, it is ORDERED: The Association s request for relief is DENIED. 7
DONE AND ORDERED this 5 th day of December, 2014, 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 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. 8
Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and U.S. Mail to the following persons on this 5 th day of December, 2014: Kelly A. Blum, Esquire Copple Sachs Copple 601 Heritage Drive Suite 217 Jupiter, Florida 33458 FAX: 561-370-6817 David W. Craft, Esquire David W. Craft, P.A. 3418 Poinsettia Avenue West Palm Beach, Florida 33407 FAX: 561-844-6267 Tonya S. Chavis, Arbitrator 9