STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Number 4 Condominium Association- Village Green, Inc., Petitioner, v. Case No Earlene Cottrell, Respondent. / SUMMARY FINAL ORDER This final order is entered pursuant to Rule 61B , Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. The material facts that are agreed to by both parties are sufficient to render a final order on these matters resolving the disputes set out in the petition. PROCEDURAL HISTORY On April 14, 2003, Number 4 Condominium Association-Village Green, Inc. (petitioner/association) filed a petition for mandatory non-binding arbitration, naming Earlene Cottrell as respondent/unit owner. The petition alleges that the respondent parks a motorcycle on the condominium property, in violation of article 11.3(i) of the association s by-laws. As relief, the association requests an order requiring the respondent to permanently remove the motorcycle from the condominium property. The respondent submitted an answer on May 6, 2003, arguing that the vehicle 1

2 parked on the premises is a moped, not a motorcycle, and thus not subject to the bylaw restriction on motorcycles. Furthermore, the respondent claims that she obtained permission from the president of the association in August 2002, to park the vehicle on the property as long as it was removed before dark. In response to an order to show cause, the association alleges that the vehicle in question is not a moped. Pursuant to section (77), Florida Statutes, among other criteria, a moped must have pedals and must not have a motor rated in excess of 3 brake horsepower. As the respondent s vehicle, a Kymco Cobra Cross, does not have pedals and has a horsepower rating greater than 3, the association contends that it is not a moped, and, thus, disallowed by the condominium documents. On May 28, 2003, the respondent submitted additional arguments alleging that, according to the Florida Statutes and legal opinions issued by the Florida Attorney General in July 2002, July 1993 and August 1977, the vehicle is neither a motorcycle nor a moped, but is simply a motor vehicle, permitted by the condominium documents. This pleading also asserts selective enforcement as a defense and cites examples of trucks that have been permitted to park on the condominium property, in violation of the parking restrictions contained in the by-laws. DISCUSSION In response to the respondent s defense of selective enforcement, based on controlling case law, the only examples of selective enforcement that can be considered in this case are comparable violations. Selective enforcement will only succeed if the failure of the board to enforce the documents in other instances bears sufficient similarity to the case at issue as to warrant the conclusion that to permit 2

3 the enforcement in the instant case would be discriminatory, unfair, or unequal. 1 Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (September 4, 1996). Here, the respondent alleges examples of trucks parking on the condominium property, in violation of article 11.3(i) of the by-laws. As trucks and motorcycles are fundamentally dissimilar vehicles in size, shape, appearance and function, examples of alleged truck violations are not similar comparisons and will not support a finding of selective enforcement. Accordingly, the defense of selective enforcement is rejected. The respondent s answer also alleges that permission was obtained from the association president in August 2002 to park the vehicle on the property as long as it was removed before dark. However, even assuming this allegation is true, the authority of the directors is conferred upon them as a board and apart from waiver or ratification by corporate stockholders, the directors must meet and act as a board. See Simon v. High Point of Delray West Condominium Association Section 2, Inc., Arb. Case No , Summary Final Order (April 3, 1995)(the arbitrator ruled that a single director has no power to act in a representative capacity for the corporation). As the respondent s alleged approval came from only one board member, this is insufficient to bind the board. For these reasons, this defense is also rejected. Article 11.3(i) of the association s by-laws states, in pertinent part: [n]o motorcycles, commercial vehicle or truck, camper or recreational vehicle shall be parked on the Condominium Property. The respondent has attempted to 1 Respondent has not demonstrated that the holding of Prisco v. Forest Villas Condominium Apartments, Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003) is applicable to the facts of this case and the arbitrator finds no application. That case involved pets and the documents at issue there prohibited all pets unlike the documents at issue here. 3

4 demonstrate that the vehicle in question, a Kymco Cobra Cross, is not a motorcycle or a moped, but simply a motor vehicle permitted on the condominium property. Sections (27) and (22), Florida Statutes, both define a motorcycle as [a]ny motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor or a moped. Clearly, under this definition, the respondent s vehicle qualifies as a motorcycle. Under section (25), Florida Statutes, a motorcycle is a motor vehicle powered by a motor with a displacement of more than 50 cubic centimeters, having a seat or saddle for the use of the rider, and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor or moped. According to the product information submitted by both parties, the Kymco Cobra Cross has a motor with a displacement of 49.5 cubic centimeters. Due to this factor, the respondent contends that the vehicle is not a motorcycle and therefore permitted on the condominium property. However, the definitions contained in Chapter 322, Florida Statutes, entitled Drivers Licenses, relate to driver license law and whether an individual must obtain a motorcycle endorsement, which permits an individual to legally operate a motorcycle on the roadways. These definitions are intended to provide a legal basis for determining whether a vehicle is a motorcycle when requiring the motorcycle endorsement. These definitions do not control the outcome of this case but provide relevant discussion. While the respondent may not be required to obtain a motorcycle endorsement in order to operate the subject vehicle, that does not prevent the vehicle from being considered a motorcycle for other purposes. As the 4

5 respondent s vehicle has two wheels and a saddle, it fits into the definition of a motorcycle described in Chapters 320 and 316, Florida Statutes. Based on these factors, the board may properly decide that the respondent s vehicle is a motorcycle, within the meaning of the condominium documents, and request its removal pursuant to article 11.3(i) of the by-laws. See Paquette v. Victoria Manor Condominium Association, Inc., Arb Case No , Summary Final Order (January 12, 2001)(the arbitrator ruled that where the declaration provides for parking spaces to be utilized by automobiles only, the board may properly decide that trucks and vans that carry passengers are automobiles within the meaning of the documents and that motorcycles are not automobiles and prohibit the petitioner from parking his motorcycle on the condominium property). The board could have properly determined that given the features of the vehicle, which features are consistent with the features found on a motorcycle, the vehicle fell within the class of motorcycles. The board may have taken into account the size, function, appearance and noise of the subject vehicle. Accordingly, the arbitrator finds that the respondent s vehicle, a Kymco Cobra Cross, is a motorcycle under the condominium documents and is prohibited from being parked on the condominium property. The respondent is found to be in violation of article 11.3(i) of the by-laws by parking a motorcycle on the condominium property; thus, the relief requested by the association is granted. It is therefore ORDERED: Within fifteen (15) days from the date of this order, the respondent shall permanently remove the Kymco Cobra Cross from the condominium property and 5

6 shall not park it on the condominium property in the future. The respondent shall fully comply with the parking provisions set forth in article 11.3(i) of the association s by-laws in the future. DONE AND ORDERED this 14 th day of October 2003, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida Right to Appeal As provided by section , F.S., a party which is adversely affected by this final order may appeal by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. Attorney s Fees As provided by section , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 14 th day of October 2003: 6

7 Scott A. Stoloff, Esq. Dicker, Krivok & Stoloff, P.A Australian Avenue South Suite 400 West Palm Beach, Florida Earlene Cottrell 2100 Springdale Boulevard Unit #Y-109 Palm Springs, Florida Melissa Mnookin, Arbitrator 7

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