STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Slade Condominium Association, Inc., Petitioner, v. Case No. 2008-03-9963 John R. Gunning and Diane M. Gunning, Respondents. / FINAL ORDER A telephonic final hearing was held in this matter on August 11, 2009, during which the parties presented the testimony of witnesses, tendered documents into evidence and cross-examined witnesses. The parties have filed recommended orders. 1 This order is entered after consideration of the complete record in this matter. Appearances For the Association: For the Respondents: Howard J. Pearl, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. 8211 West Broward Blvd., Suite 250 Plantation, FL 33324 William M. Winkel, Esq. 7301 South Dixie Highway West Palm Beach, FL 33405 1 The Association has filed a Motion to Strike the Respondents Proposed Final Judgment on the basis that it was not timely filed. The motion is denied as the Association has not been prejudiced by the late filing. 1
Statement of the Issue Whether the Respondents installed hard surface flooring in their unit without sufficient sound insulation material in violation of the condominium s governing documents. Conclusions of Law 1. Slade Condominium Association, Inc. (the Association) is the corporate entity responsible for the operation of the Slade Condominium (the Condominium). 2. John R. Gunning and Diane M. Gunning (the Respondents) own unit 1103 at the condominium. 3. Ms. Gunning testified that soon after the Respondents bought their unit in September 2005, they installed tile with a cork underlay in their unit. Ms. Gunning further testified that at the time the tile was installed, the Association was controlled by the developer and she did not believe there was an application and approval process. She stated before installing the tile, she showed a sample of it and the cork underlay to the Association s manager and thought it had been approved by the manager. 4. Leesa Conley Harding lives in the unit directly below the Respondents unit. She moved into her unit in August of 2005. In March 2006, she started to hear noise coming from the Respondents unit. In March or April 2007 she made a complaint to the Association concerning noise emanating from the Respondents unit. She claimed she could hear footsteps in the unit above. Ms. Harding stated that she agreed to have testing performed to measure the sound transmission from the Respondents unit to her unit. 5. By letter dated April 11, 2007, addressed to the Respondents, the Association s property manager at that time informed the Respondents that it had come to the Association s attention that they had made some architectural modifications to their unit 2
and that the Association records did not indicate that they had submitted an application to the Association. The letter further requested that the Respondents submit proof of the work done including all specifications. 6. By letter dated May 11, 2007, addressed to Ms. Gunning, the Association s property manager informed Ms. Gunning that the Association had not received the information requested by the prior letter. 7. On November 17, 2007, Edward Dugger and Associates, P.A., consultants in architectural acoustics, performed a Field Impact Insulation Class (FIIC) test and Field Sound Transmission Class Rating (FSTC) test 2 on the flooring in the Respondents unit and memorialized the results in a report dated November 18, 2007. 8. The FIIC test was performed on the master bedroom and living room flooring with following results: a. living room 30 b. master bedroom 31. 9. The FSTC test was performed in the living room with resulting measurement of 57 FSTC. 10. Mr. Gunning testified that he never lived at the unit. At the time the Gunnings purchased the unit they were separated. Mr. Gunning stated that the problem with the floor s sound proofing was first brought to his attention by the Association s attorney sometime in 2007. 11. Mr. Gunning testified that he met with the Association s board of directors in March 2008 and agreed to carpet the unit. Therefore, he purchased residential carpeting 2 FIIC measures structure borne sound transmission (e.g. footsteps) and FSTC measures airborne sound transmission (e.g. speaking). A higher number indicates a lower degree of sound transmission. 3
for installation and submitted an application to the Association dated April 21, 2008, requesting to carpet the entire unit except for bathrooms. 12. Mr. Gunning signed a Notice and Acceptance of Standards For Control of Sound Transmission and Impact Insulation (Floor Coverings) that was dated April 21, 2008. This document stated hard surface flooring will only be permitted in the foyers and kitchens of units. The notice also provided the technical sound insulation specifications that hard surface flooring installed by unit owners must meet and informed the signatory that if non-conforming flooring is installed, the Association may require its removal at the signatory s expense. The document further provided that the signatory acknowledged receipt of the notice of the flooring provisions and agreed to abide and be bound by them. Ms. Gunning signed a similar form on August 1, 2008. 13. Mr. Gunning submitted an amended application dated April 28, 2008, requesting to carpet the entire unit except for the bathrooms, entry foyers and kitchen. The application stated that the kitchen and entry foyer would be retiled with sound proofing. However, the bathroom would maintain the original tile. 14. By letter dated May 5, 2008, the Association s property manager informed Mr. Gunning that his applications had been denied. 15. Mr. Gunning believes the applications were rejected because he did not agree to carpet the entryway and the kitchen. He did not know if the tile in the entryway and kitchen was originally installed by the developer. Mr. Gunning also acknowledged that the carpeting that he purchased was not to the Association s standards. Mr. Gunning additionally admitted that he has neither provided the Association with sound transmission 4
rating information for the tile floor covering that he and Ms. Gunning installed in their unit or floor covering that they intended to install in the unit to remedy the Association s complaint. 16. Fred Teets has served on the Association s board of directors since January 2006. From January 2006 to January 2007 he served as president. Mr. Teets testified that since he has been on the board, the Association has had a policy of reviewing modifications to units. Unit owners are required to submit a form, with drawings and any applicable permits. Mr. Teets stated that before a new floor covering will be approved, it must be demonstrated that it meets the Association s sound insulation requirements. 17. Mr. Teets testified that the Gunning s April 21, 2008 application was rejected because it lacked information regarding the flooring s sound insulation. This basis was stated in an e-mail from Mr. Teets to the Association s property manager dated April 22, 2008, the Mr. Teets wrote, pertinent part, I have not seen Gunning s request for approval recovering the tile floor (he did not have it when we met yesterday), but based on the attached description from the carpet installer, Carpet installation on the entire apartment except on kitchen and the little foyer (3X6 area), I believe that we should not approve it. The kitchen and foyer tile were replaced without the soundproofing underlayment and without some type of correction in those areas the sound problem is not fully corrected. I believe that our approval will mean that we agree that those areas do not have to be corrected and we, the Association, will become liable for correction when Leesa Harding, Unit 1003, complains. Note - the description on the attached is also not correct in that the identified areas to be covered do not agree with the above statement; the Bath Rooms are not being done and we agree that they do not need to be done since they still have the original tile. Also, during our discussion yesterday, I stated, as does the proposed Settlement Agreement, covering all of the tile except the Bath Rooms. 18. Section 17.9 of the Declaration of the Slade Condominium (the declaration) provides, in pertinent part, as follows: 5
Weight, Sound and other Restrictions. Unless Installed by the Developer or otherwise first approved by the Board, hard and/or heavy surface floor coverings such as tile, marble, woof, and the like will be permitted only in foyers and bathrooms. The Board shall not approve the installation of any hard and/or heavy surface floor coverings (for which approval is required) unless the aggregate sound isolation and acoustical treatment carries a minimum Sound Transmission Classification (SIC) and Impact Isolation Class (IIC) rating of 55. The installation of the foregoing insulation materials shall be performed in a manner that provides proper mechanical isolation of the flooring materials from any rigid part of the building structure, whether of the concrete subfloor (vertical transmission) or adjacent walls and fittings (horizontal transmission) and must be installed prior to the Residential Unit being occupied. Installation of hard surfaced floor coverings (other than by the Developer) or in any other areas are to receive sound absorbent, less dense floor coverings, such as carpeting. Use of a hard and/or heavy surface floor covering in any other location must be submitted to and approved by the Board of Directors and also meet applicable structural requirements. Owners will be held strictly liable for violations of these restrictions and for all damages resulting therefrom and the Association has the right to require immediate removal of violations. Each owner agrees that sound transmission in a multi-story building such as the Condominium is very difficult to control, and that noises from adjoining or nearby units and/or mechanical equipment can often be heard in another unit. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant 718.1255, Fla. Stat. Due to their ownership of a unit at the Condominium, the Respondents must comply with the Condominium s governing documents. Section 17.9 of the Declaration provides that absent the approval of the Association s Board of Directors (Board), other than the unit s foyer and bathrooms, an owner may not install hard surface flooring in a unit. The Respondents have violated this provision by installing tile flooring throughout their unit which included areas other than the foyer and bathrooms without the prior approval of the Board. Additionally, the section 17.9 prohibits the installation of hard surface flooring coverings in units by owners unless the flooring sound isolation and acoustical treatment 6
carries a minimum Sound Transmission Classification (SIC) and Impact Isolation Class (IIC) rating of 55. This applies to all tile installed in a unit by an owner, including tile installed in the foyer and bathrooms. Testing of the tile installed by the Respondents in their unit found IIC ratings of 30 and 31 for the living room and master bedroom respectively. This is below the minimum requirement of section 17.9. Therefore, because the tile installed in their unit does not meet this standard, the Respondents violated section 17.9 of the declaration. The Respondents contend that they thought they had approval for the installation of the tile because Ms. Gunning showed samples to the property manager while the Association was still under developer control. Section 17.9 of the declaration clearly requires the approval of the Board prior to installation of hard surface flooring. The Respondents did not demonstrate that the property manager to whom Ms. Gunning referred was authorized by the Board to approve flooring installation requests. As such, the Respondents failed to establish that the Association should be estopped from enforcing the provision. See Curci Village Condo. Ass n, Inc. v. Santa Maria, 14 So.3d 1175 (Fla 4th DCA 2009). The Respondents argue that they have attempted to comply with the governing documents, but the Association has improperly rejected their applications to install carpeting and sound insulated tile. The Association rejected the Respondents applications because they failed to state the sound insulation specifications for the areas they intend to install hard surface flooring. The applications were submitted in April of 2008 and denied in May of 2008. Mr. Gunning testified during the final hearing that he has not provided the Association such specifications. 7
Section 17.9 of the Declaration clearly provides empirical standards for sound insulation that must be met by hard surface flooring installed by a unit owner. The Respondents have signed notices informing them of these specifications. The Respondents have had ample time to provide the Association with specifications of the flooring with which they intend to cover or replace the non-conforming tile. Until the Association is provided with such specifications, it is reasonable for the Association to deny the Respondents application. Based upon the foregoing, it is ORDERED: 1. The Respondents are found to have violated section 17.9 of the Declaration by installing tile throughout their unit without the prior approval of the Association. The Respondents also violated section 17.9 because the tile flooring they installed does not meet the sound insulation requirements of the section. 2. Within thirty (30) days of the date this order, the Respondents shall submit an application to the Association to replace or modify the non-conforming tile with flooring that meets the requirements of section 17.9. The application shall provide the sound isolation and acoustical treatment Sound Transmission Classification (SIC) and Impact Isolation Class (IIC) for any hard and/or heavy flooring material. 3. The Respondents shall, at their own expense, replace or modify the nonconforming tile within forty-five (45) days of the date of approval of their application by the Association. 8
DONE AND ORDERED this 8 th day of January, 2010, at Tallahassee, Leon County, Florida. James W. Earl, 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 8 th day of January 2010: Howard J. Pearl, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. 8211 West Broward Blvd., Suite 250 Plantation, FL 33324 William M. Winkel, Esq. 7301 South Dixie Highway West Palm Beach, FL 33405 James W. Earl, Arbitrator 9