State of florida

STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES
IN RE: PETITION FOR ARBITRATION
Surfside South Condominium
Association, Inc.,
Petitioner,
Case No. 98-4158
O.M. Heard,
Surfside South Condominium
Association, Inc.,
Petitioner,
Case No. 98-4157
Larry Heard,
Respondent.
SUMMARY FINAL ORDER
Comes now, the undersigned arbitrator, and enters this final order as follows: The association commenced these consolidated cases in June of 1998, seeking entry of an order requiring respondents to remove their screen doors and replace them with doors conforming to the association's specifications, According to the association, the other screen doors at the condominium are bronze in color. The resoondents filed their answers on or about July 30, 1998, and raised the defense of selective enforcement. On August 20, 1998, the arbitrator entered an order consolidating thesertwo cases and taking official notice of certain prior arbitration decisions. The order also permitted the parties to file memoranda of law on the issue of selective enforcement. The parties filed their memoranda of law, with the last being filed on September 14, 1998. The respondents each admit to installing a white screen door outside their unit's main entrance door. The screen doors were installed, one at the entrance of each unit, without any vote of the owners and without approval of the board, as required by the declaration which provides in part as follows: (b) (2) A Unit Owner shall not modify, alter, paint or otherwise decorate or change the appearance, d6cor or demeanor of any portion of the Condominium Property, nor shall any Unit Owner attach any thing or fixture to the Condominium Property without the prior approval, in writing, of seventy-five (75%) percent of the units, and the approval of the Association. Section 12.8 of the declaration provides: Interior hallways. All doors between Units and interior hallways shall be kept closed at all times when not being used for ingress or egress. Screens or screen doors on entrances between Units and interior corridors are prohibited unless specifically authorized by the Association. The condominium consists of sixty-two units, Respondents argue that the association has permitted other nonconforming doors to be installed and have supplied photographs of units showing that some units have no screen doors, but have steel security gates, Other units feature no screen or secondary door whatsoever but Condominium Association, Inc. v. Salussolia, Arb. Case No. 96-0384, Order Striking
Certain Defenses (September 4, 1996), where the association sought to require the owner to change an exterior balcony door from wood and glass to silver or aluminum, The arbitrator rejected the owner's proffer of selective enforcement where it was shown that there were no other nonconforming exterior balcony doors, although it was alleged that other deviations on the balconies had been permitted Some of the units had different light fixtures, some balconies had storm shutters while others did not, some units had a screen or sliding doors while others did not, one door had a padlock, religious symbols were displayed on some doors, some of the doors had 2 locks, and one unit had tinted glass on the door, The . As applied to this case, and recalling that respondent has no examples of nonconforming paint on balcony doors, the fact that different lighting fixtures adorn the balconies is irrelevant and unrelated to the balcony door paint. The fact that some units have balcony doors, while others do not, that some units have screen doors while others have glass doors, is also not similar to the color scheme of the balcony doors. The placement of religious symbols has no significance to the balcony door paint, and the placement and selection of locks on the main doors to a unit have no apparent connection to the color of the balcony doors. In the ordinary case, hurricane shutters and window film are inherently unreliable indicators of selective enforcement. The arbitration case of Vista Del Mar Association, Inc. v. !.~d, Arb. Case No. 97-0399, Order Striking Affirmative Defenses and Summary Final Order (February 20, 1998), also concerned doors The owners argued that the fact that the association permitted nonconforming screen doors should operate to prohibit the association from enforcing specifications set for main doors The arbitrator stated that ". selective enforcement is not applicable because screen doors are not comparable to entry In Leisure Mach South, Inc. v. Wiq , Arb. Case No. 97-0157, Summary Final Order (November 13, 1997), where the association sought the removal of hurricane shutters, the arbitrator ruled that the fact that the association had permitted various front door styles, fences, and air conditioners to be installed did not show selective enforcement: In the case at hand, it cannot be said that differing front doors, fences, or the addition of central air conditioning are comparable to the respondents' addition of the hurricane panels on the exterior patio. These examples differ in location, effect, and nature, and are not sufficient to show selective enforcement. The claim that in the past, prior to the adoption of hurricane shutter specifications, the association has permitted three types of hurricane shutters to be installed on the units, would be more germane to the instant case but for the fact that the examples relate to a time prior to the adoption by the board of hurricane shutter specifications. The cases cited above find direct application to the facts presented in this case, First, the fact that some of the screen doors permitted by the board do not have screening material, but have storm panels within the door, is irrelevant to the charge of the association that the screen door is white and not bronze like the others. In Tradewinds East, discussed above,
the arbitrator ruled that the owner must change his kickplate on his patio door from white
to bronze, despite evidence that other kickplates on patio doors differed as to location and despite evidence that some enclosures lacked windows, where only one other example of a white kickplate was offered, which had been in place for over 15 years, Therefore, based on the rationale suggested by Tradewinds East, the fact that in the instant case, some screen are permitted that have storm panels does not show selective enforcement in that the association in this case is focusing on color of the screen door, and not on the location or arrangement of the components of the door, Next, respondents claim that since the solid exterior doors inside the screen doors are white, the association is being selective and arbitrary in refusing to permit white screen doors, In Vista Del Mar Association, discussed earlier, the arbitrator held that where the association had not enforced restrictions against screen doors, failure could not be used against the association attempting to enforce specifications for main entrance doors, If screen doors are not comparable to entry doors for purposes of selective enforcement, then all of respondents' examples of alterations to the main doors are as a matter or law irrelevant, and in addition, respondents' assertion that the main doors are white Beyond this, and recognizing that since the screen doors fit within the main doors to form an entryway system, such that arguably a change in one component may affect the system, it is evident from the photographs that the fact that the main doors are white cannot save the white screen door here, The series of photographs show the main doors to be significantly recessed from the screen doors, such that the two doors within the entry way are viewed as separate and distinct. In addition, an effect of the darkened screening in this case on the screen door is to obscure the true color of the main door behind, such that the door to the observer could be deemed beige, brown, gray, white, or another color, Thus, the barrier of the screening serves to reinforce the separation existing between the doors, such that door does not blend into the white of the other door, as suggested by respondents. The uniformity of appearance is already lacking with the addition of screening material. In additi6n, the examples of hurricane shutters placed on exterior windows differ from the screen doors sought to be removed in terms of location, effect, and nature, and are not suitable examples of selective enforcement; consequently, the hurricane shutter examples are Respondents also claim that the security gates permitted to be installed on two units in lieu of screen doors demonstrate selective enforcement, The security gates appear to be constructed of steel and feature approximately six vertical bars intersected by two or three bars running horizontally at different elevations on the door, There are decorative crest-like symbols appearing in the center position on the doors. The gates are black and are not white, and the screen doors installed by the respondents are white, Hence, the security gates do not contain the flaw identified by the association as the motivating factor behind the association in this instant actionthe color white. Moreover, the gates differ in function and purpose from screen doors Screen doors serve no meaningful security function while the metal gates do; and screen doors, unlike the security doors, do not permit debris, insects, and other creatures to enter the dwelling Given these two sets of considerations, it may be stated that screen doors differ from secure steel gates in the same respect as screen or other secondary doors differ in function and use from the primary entry-way doors, For purposes of the discussion of selective enforcement, therefore, it is determined to treat the steel gates as differing from the screen doors such that the security gates are not viewed as comparable, In short, while the respondents have successfully illustrated the great diversity of certain aspects of the condominium, there has been no showing of other white screen doors in thEr community, and selective enforcement is rejected as a defense. Other screen doors in the condominium are invariably bronze in color and differ substantially in appearance from respondents' white wood frame screen doors, Certain variations have been permitted by the association within the confines of the bronze frame; for example, bronze ornamental metal work has been permitted in the lower half of some of the bronze screen doors, bronze panels are permitted within the screen door assembly in some instances, but the common element in these examples is the color bronze. Sufficient evidence is presented to conclude that the association is acting rationally in attempting to preserve the darker color scheme within the community. Having rejected the defense of selective enforcement, there is little left to the case. Respondents also raise as an affirmative defense that the association has not adopted formal procedures to be employed by an owner seeking to make changes to the common elements, There is no requirement either in the statute nor condominium documents for the association to adopt written procedures declaration requires that the owner get the approval of the board and of the owners for certain changes, and it would prove expedient if the owner addressed the inquiry to the board, in writing There is no need for written procedures Based on the foregoing findings and conclusions, the respondents are ordered to remove their white screen doors within 30 days of entry of this final order, failing which the association is entitled to remove the doors and bill the respondents for the expenses involved DONE AND ORDERED this 14th day of December, 1998, at Tallahassee, Leon Karl M. Scheuerman, Arbitrator Department of Business and Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1030 hereby certify that a true and correct copy of the foregoing has been sent by U. S. Mail to the following persons on this 14th day of December, 1998: Richard A. Zacur, Esquire 5200 Central Avenue P.O. Box 14409, St. Petersburg, Florida 33733 and to James R. De Furio, Esquire Becker &Poliakoff , P.A. Suite 960 Clearwater, Florida 33755-4116. As provided by s.71 8.1255, F. S., this final order may be appealed by the filing of a petition for trial do novo with a court of competent jurisdiction located in the circuit in which the condominium is located, within 30 days of the rendition and mailing of this final order. If

Source: http://www.bpr.state.fl.us/lsc/arbitration/pdf/regular%20index-volume%202%5C98-4158.sfo.doc.pdf