STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES. v. Case No.

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION MAINLANDS OF TAMARAC BY THE GULF, UNIT NO. THREE, ASSOCIATION, INC., Petitioner, v. Case No RICHARD LEVIN, Respondent. / FINAL ORDER Pursuant to notice, a formal hearing in this case was held before the arbitrator on July 9, 1997, in St. Petersburg, Florida. Both parties presented the testimony of witnesses and tendered documents into evidence. Both counsel filed post-hearing argument, with said filings being completed on July 28, This order is entered after consideration of the complete record in this matter. BACKGROUND Mainlands of Tamarac by the Gulf, Unit No. Three, Association, Inc. (petitioner or association) filed a petition for arbitration against Richard Levin (respondent or unit owner) on October 28, An amended petition was filed December 12, The amended petition alleges that the respondent altered his unit by constructing a room addition/screened porch without without permission of the board of directors in violation of the declaration of condominium and, further, that the room addition/screened porch violates the Construction Code of the Mainlands of Tamarac by the Gulf condominium because the respondent used unapproved materials in the construction of the addition and failed to hire a licensed contractor to construct the addition.

2 An order requiring the respondent to answer the petition was entered on December 17, 1996, and, following an extension of time, respondent filed his answer on January 30, The respondent s answer claims that the materials used in the construction are acceptable under the code (wood frame, rather than concrete block); that the code does not require the respondent to hire a licensed contractor for the work respondent performed himself; that the association selectively enforced the code by permitting other wood frame construction; that the pet itioner failed to follow its own procedures for violation of the condominium documents and the code; that any rule promulgated by the association requiring concrete block construction for room additions to the exclusion of wood frame construction is unreasonable and arbitrary; and, that any interpretation of the code to mandate concrete block construction is ambiguous and should be construed against the association. Thereafter, the parties conducted discovery and responded to interrogatories posed by the arbitrator; a notice of final hearing was entered on June 11, FINDINGS OF FACT 1. The respondent owns a unit in t he Mainlands of Tamarac By the Gulf, Unit No. Three Condominium, located in Pinellas Park, Florida. The condominium consists of single family homes and the surrounding common elements. 2. At the beginning of March 1996, the respondent submitted an Exterior Property Alteration Application to widen the driveway and to build a Florida room on his unit. The respondent s unit, like the other units in the condominium, is constructed of concrete block with a white stucco exterior. The application was approved by the property manager and then submitted to Barbara Fields, the Director of Construction for the association. Under the Construction Code, an application is first provided to the manager for review; it is then forwarded to the board for approval. Fields is a member of the board of directors who has been delegated authority by the board to 2

3 review and approve construction plans. 3. The application lacked drawings, which Levin then supplied. At thi s point, it became clear that Levin was proposing to build his addition using wood rather than masonry construction. Fields indicated she could not approve it for this reason and because, with the exception of the roof, he did not intend to have the construction supervised by a licensed contractor. 4. The board met with the Levin to discuss his proposal. At the conclusion of a heated meeting, Levin agreed to employ masonry construction instead of wood if the board would approve the application. Levin even wrote cinder block on the plans submitted to the board. 5. A board memorandum of April 4, 1996, to Mr. and Mrs. Levin, indicated that the board will not approve the application submitted by you for the expansion of your Florida Room until the following construction code requirements are met. Relevant to this dispute were the following requirements cited by the board: 1.4 b. Supervision of a contractor for exterior walls, roof and electric 1.7 Unlicensed contractor 4.0 a. Concrete block must be used for exterior walls 4.0 b. Concrete block kneewalls for exterior walls 6. During the Memorial Day weekend, Levin init iated construction on the Florida room addition, doing it himself and with the help of some friends, using wood frame construction. According to Fields, this was the first time the association realized that Levin was not going to follow the code. The board apparently sought and obtained a court order halting the construction. Levin had already completed the concrete pad, the roof and some of the wood framing by the time work was stopped. 7. Article X(F) of the bylaws of the association provides that [n]o structural changes or alterations shall be made in any unit, except upon approval of the Board of Directors. The board 3

4 has adopted a construction code which it applies in deciding whether to approve alterations or additions to units. The construction code in effect at the time of the instant dispute, July 14, 1994, provides in relevant part 1 : The purpose of this code is to insure that structures or modifications that are built within Mainlands of Tamarac are designed and constructed in a manner that will enhance the aesthetic value of the community, and if possible, preclude the erection of any structure which would create a hazard to the communit y. This code is intended to serve as a basis for sustaining or improving the quality, appearance, and property value of the community. * * * b. All alterations and modifications and construction having a value of $ or more shall be done under the supervision of a contractor licensed by the city, county, and state as may be required by law. * * * 2.0 Structures to be constructed:... a. All approved structures must be attached to the existing structure and so designed and built as to conform substantially to the design and construction of the original structure. * * * 4.0 Walls [Structural] a. All concrete, or concrete block, exterior walls shall be crete finished, and the crete shall be colored white to match the exterior of the house. b. Existing porches without kneewalls, must have concrete block kneewalls constructed when windows are to be installed.... CONCLUSIONS OF LAW The respondent argues that the code is ambiguous and that it should be construed against the association that is trying to enforce it. Specifically, he argues that wood frame construction is not specifically prohibited by the code, nor is masonry construction specifically required. He points out that Paragraph 4.0 a. and 4.0 b., above, relied on by the board in its letter reject ing his application, do 1 There is some confusion over which code applies, the 1/12/90 revision, the 2/5/90 revision or the 7/14/94 revision; however, since all of the relevant provisions are identical, which version applies is immaterial. 4

5 not require the use of concrete blocks. The respondent is partially right. Paragraph 4.0 a. only requires a crete finish for concrete or concrete block walls. Paragraph 4.0 b. requires concrete block kneewalls if windows are going to be installed in an addition. The respondent s original plans indicated that he wanted to install two windows. During this proceeding, however, he indicated that he might turn his Florida room plan into a screened-in porch, in which case, it is questionable whether 4.0 b. would be applicable at all because it seems to apply to existing porches. When the code as a whole is considered, however, no ambiguity exists. See American Employers Insurance Co. v. Taylor, 476 So.2d 281 (Fla. 1st DCA 1985)(every provisi on in contract should be given meaning and effect); Gulf Power Co. v. Cox Cable Corp., 570 So.3d 399 (Fla. 1st DCA 1990)(in construing provision of a contract, court should look at contract as a whole to ascertain the intent of the parties). The condominium documents are susceptible to the basic rules of interpretation. Koplowitz v. Imperial Towers Condominium, Inc., 478 So.2d 504 (Fla. 4th DCA 1985). Paragraph 2.0 states that all additions shall be designed and built... to conform substantially to the design and construction of the original structure. Since the respondent s (and everyone else s) unit consists of a masonry structure (concrete block with crete finish) there can be little doubt of the meaning of Paragraph 4.0 a.: exterior walls shall be crete finished, and the crete shall be colored white to match the exterior of the house. Paragraph 4.0 b. requires concrete block kneewalls to be installed when windows are being installed in an existing porch without kneewalls. Levin s plan was to enlarge the patio concrete pad and to enclose the room. The plan called for windows to be installed, therefore, both 4.0 a. and 4.0 b. would apply. After the incident with Levin, on June 6, 1996, the board amended the construction code to specifically provide that [o]nly masonry construction is permitted for walls. The respondent claims that this is an admission by the association that the code was ambiguous on the question of 5

6 masonry construction prior to the change. Connelly and Fields denied that the code was amended because it was ambiguous, rather the board sought to clarify its meaning in the resident s minds. The respondent has cited no cases supporting his proposit ion. Accordingly, the argument is rejected. Levin argues that because Paragraph 2.0 of the construction code, requiring additions to substantially conform to the existing structure, was never referenced by the board in i ts dealings with him that it cannot rely on it now. 2 He invokes Paragraph 1.6 of the code which requires that notice of code violations given to a resident must clearly state the nature of the violation and what must be done by the resident to restore the structure to its original condition. This defense is rejected. First, Fields and the board unequivocally communicated to the respondent how his construction proposal ran afoul of the construction code. He admitted that he knew that the board expected the construction to be masonry and supervised by a contractor. The only thing Field and the board failed to do was cite every paragraph of the code which might conceivably support their action. Second, Paragraph 2.0 should not have to be mentioned. The bylaws provide that approval of the board is required for any additions to or alterations of the unit. In addition, conformity is an underlying theme of condominium living. See Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971)(documents and condominium act ought to be construed strictly to assure investors that what the buyer sees the buyer gets; individual ought not be permitted to disrupt integrity of the common scheme through his desire for change, however laudable that change might be). In fact, the preamble to the construction code states [i]n order to insure uniformit y in the construction or modificat ion of any of the condominium 2 In this action, the association asserted this provision in its amended petition. 6

7 units the construction regulations which follow must be adhered to:. Levin argues that Paragraph 1.4 b. of the code does not require the supervision of a contractor in his case. Paragraph 1.4 b. provides that [a]ll alterations and modifications and construction having a value of $ or more shall be done under the supervision of a contractor licensed by the city, county, and state as may be required by law. No one disputes that his addition was valued in excess of $ The gist of his argument is that Pinellas count y does not require an owner/builder to have a contractor, therefore, he is not required to have one under Paragraph 1.4 b. Respondent misreads the provision. The phrase as may be required by law refers to the requirement of licensure of the contractor by the various governmental entities, rather than a requirement of the jurisdiction that an individual have a contractor. The reason that a fact-finding hearing was held in this case is because the respondent claimed selective enforcement of the code. Specifically, he claimed that there are other wood frame additions in existence in the condominium. At the hearing, it was brought out on cross examination that the several wood frame additions cited by the respondent were installed in the 1970s and 1980s and may even have been approved by the developer. Developer approved additi ons cannot support a defense of selective enforcement. See Esplanade Patio Homes Homeowners Association, Inc. v. Rolle, 613 So.2d 531 (Fla. 3rd DCA 1993)(where only developer, and not the homeowner association had given permission for installation of satellite dish contrary to declaration, association not estopped from enforcing restriction). More telling is that the multitude of recent room additions are all of masonry construction. Ethel Connelly, president of the association, testified that between 1990 and 1995, there were 20 applications for stucco on frame room additions, none of which were permitted. Of those, 18 built their additions using masonry construction and the other two gave up their plans for an addition. 7

8 The respondent also argues that the code is unreasonable. Restrictive covenants which reserve the grantor s right to approve plans for improving the land are valid and enforceable unless the right or the exercise of it is arbitrary and unreasonable. Coral Gables Investments, Inc. v. Graham Companies, 528 So.2d 989 (Fla. 3rd DCA 1988); see also, Pines of Boca Barwood Condominium Association, Inc. v. Cavouti, 605 So.2d 984 (Fla. 4th DCA 1992)(standard for review of validity of board-made restriction with respect to condominium is whether rule is reasonably related to promotion of health, happiness, and peace of mind of all unit owners). The burden is on the challenging party to show that the covenant that they allegedly violated is unreasonable or arbitrary on its face or that the exercise of any discretion afforded under the covenant has been arbitrary or unreasonable. Europco Management Company of America v. Smith, 572 So.2d 963 (Fla. 1st DCA 1990). The purpose espoused by the code is to enhance the esthetic value of the community; preclude a structure which would create a hazard to the community; and to sustain or improve the quality, appearance, and property value o f the community. These values are supportive of the health, happiness and peace of mind of unit owners. Generally, uniformity of exterior appearance of a condominium is considered to be a legitimate purpose of a condominium association. See Florida Condominium Law and Practice, Concepts of Condominium Ownership, Section 1.7 (2d ed. 1996); Sterling Village, above. In addition, Section (3), Florida Statutes, prohibits a unit owner from do[ing] anything within his unit... which would adversely affect the safety or soundness of the common elements or any portion of the... condominium property which is to be maintained by the association. Because the association is responsible for maintaining the exterior of the units in this condominium, periodically using a pressure washer to clean the exterior, it is reasonable for the association to prohibit a form of construction that cannot be maintained adequately in this manner. 8

9 Dennis Deal, a local contractor, testified that pressure washing stucco over wood frame might result in the stucco separating from the wood. For the sake of esthetics, it seems reasonable to require unit owners to stay with the type of construction already in place in the condominium, which is masonry. The requirement that construction valued at over $ be supervised by a licensed contractor is reasonably related to the goal of precluding a structure which would create a hazard to the community. Deal testified that the construction carried out by the respondent probably would not have been approved if a contractor had been supervising the construction. 3 First, nails used by Levin are rusting, indicating that the nails he used were not galvanized, as required by the standard building code. Second, some of the wood studs which come into contact with cement were not pressure treated as required and, therefore, moisture could seep into them, rot and weaken them. He also noted that in some places the stucco was only ½" thick. The manufacturer s reco mmendation is that stucco be applied in a ¾ thickness. Without sufficient thickness of stucco, Deal indicated that the structure lacks structural integrity. Deal indicated that when a structure is weakened in this way, it is more susceptible to being blown apart by high winds. Such an event would create a danger to the surrounding properties. RELIEF AND REMEDY The relief requested by the association, that the respondent be ordered to comply with the provisions of the declaration of condominium, bylaws and the construction code, and cease and desist any further construction without the proper and appropriate construction materi als, and that he restore construction so that it complies with the construction code, is granted. Richard Levin shall either finish the construction started in May, 1996, according to the specifications of the board and 3 The city granted Levin a certificate of occupancy. 9

10 its director of construction, including the requirement that construction be supervised by a licensed contractor, or he shall remove the wood frame structure and restore the property to its original condition. The respondent shall have 60 days from the date of entry of this order to carry out its requirements. If the respondent shall fail to do so, the association is authorized to restore the area and bill the respondent for the costs incurred. DONE AND ORDERED this 8th day of September 1997, at Tallahassee, Leon County, Florida. Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a part y adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency and is not 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, to Richard A. Zacur, Esquire, P.O. Box 14409, St. Petersburg, FL and Paul R. Cavonis, Esq., DeLoach & Hofstra, P. A., 8640 Seminole Blvd., Seminole, FL this the 8th day of September

11 Patricia A. Draper, Arbitrator 11