FINAL ORDER. THIS CAUSE having come on for hearing, and the arbitrator having

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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 ROBERT J. LEE, Petitioner, v. WINSTON TOWERS 100 ASSOCIATION, INC., Case No Respondent. / FINAL ORDER THIS CAUSE having come on for hearing, and the arbitrator having accepted evidence and considered the argument of counsel, the undersigned arbitrator makes the following findings of fact and conclusions of law. This action includes two issues, namely, the plumbing problem and the records request which are considered separately below. PLUMBING ISSUE Petitioner owner's petition alleged certain problems with the plumbing in his unit backing up. Petitioner alleges that the respondent association has a duty to maintain the common element plumbing in such a manner that water does not back up into petitioner s unit, and that the association has failed to maintain the system with the result that his unit has been subject to repeated sewage intrusion. As relief, petitioner seeks an order requiring the association to remedy the situation, including but not limited to the 1

2 installation of backwater valves. In addition, the petition contains a general prayer for relief. Petitioner owns two units, 202 and 218. Both of them are on the bottom inhabited floor of the building. Petitioner testified that he has had intermittent problems with the plumbing in each unit since purchase. He purchased unit 218 in 1984 and 202 in Petitioner testified that neither unit has been occupied in the last year, and they are presently uninhabitable. Unit 202 was usually rented till the last tenant was evicted in early 2001 for breach of his lease. Unit 218 has been usually rented from purchase until the end of 2001, when the tenant left due to flooding. Petitioner testified that in unit 202, soapy water with sand and silt comes out of sink, and in 218 sewage comes out of sink. In both units, there is resultant water damage, mold, damaged equipment and fixtures. Petitioner further testified that he has experience as a property manager and a condominium board member for other condominiums. He testified that he has seen problems like this cured by the installation of back flow preventers. However, on cross examination, he admitted that he had no plumbing expertise, could not say what caused the problems, nor give an opinion as to whether a back flow preventer or any other potential solution would fix this problem. Respondent introduced the testimony of Mr. Peleg, a master plumber employed by the respondent as an expert witness. He has 40 years of 2

3 experience in plumbing and experience with this building and other high-rise buildings. He testified that the installation of back flow preventers or check valves in sewer lines is improper and against local code. Further, he testified that they would not correct the problems, but would simply transfer the problems somewhere else. He testified that the sewer lines in this condominium are not regularly cleaned, rather they are just cleaned in response to problems. He testified that he handled the last three problems with the petitioner's units, and that one was caused by a plumbing snake lost by another owner in the line, one was caused by a plastic bag, and one was caused by a grease plug. He opines that the problems are being caused by actions of other tenants, including problems with blockages caused by disposal of improper items, and soap suds caused by use of too much soap by tenants. He also opines that there is nothing which can be done to the plumbing system which would alleviate the problems that petitioner is having, rather, he opines that the only means of redress is through owner education. The testimony of Mr. Peleg in reference to the code provisions relating to back flow preventers seems to be supported by the Section 715 of the Florida Building Code, which provides: A backwater valve shall be installed only for plumbing fixtures where the overflow rim of the lowest plumbing fixtures are below the next upstream manhole in the public sewer. Plumbing fixtures with flood rims above the next upstream manhole shall not discharge through the backwater valve. 3

4 Petitioner did not advance testimony on which the arbitrator could form an opinion as to the proper method for remediation. Petitioner offered only his own testimony. Although he has experience with such problems as a building manager and condominium board member, petitioner has no expertise in plumbing and has admitted that he could not give an opinion regarding the problems and remedies for this system. Therefore, the arbitrator must find that the petitioner has not carried its burden of proof in relation to any specific relief which is available in arbitration. Therefore, the relief requested in the petition must be denied. RECORDS REQUEST The petition alleged that the petitioner requested certain documents from the respondent association, which documents were not provided until after the commencement of this arbitration. As relief, petitioner asks for statutory damages. Counsel for the petitioner directed a letter to the association dated February 18, The letter demanded copies of the declaration and insurance policy pursuant to s , F.S., and further requested access to the books and records of the association. Access was requested for any plumbing complaints as well as the minutes of board and membership meetings. The association through its manager responded to the letter by letter dated February 26, The letter does not offer access to the books and records but speaks to certain plumbing issues and ends with the statement 4

5 that the association is available to answer any other inquiry petitioner may have. Section (12)(b), F.S., provides that the official records of the association shall be made available to a unit owner within 5 days after receipt of a written request to view the official records. Section (12)(c), F.S., states that the failure of an association to provide the records within 10 days after receipt of a written request creates a rebuttable presumption that the association has willfully failed to provide access, and subjects the association to statutory damages as described therein. This statute does not require the association to provide copies of its books and records and mail them to the requesting owner; the statute only ensures access to the records. Therefore, there is no violation of the statute found even assuming here that manager failed to mail copies of the requested documents to the petitioner. Part of the letter did, however, request access to the books and records. This request was not addressed by the manager s response of February 26, The entreaty by the manager to the petitioner to contact the manager if further questions remain is nonresponsive to the request for access. As such, the arbitrator concludes that the association has not overcome the statutory presumption that it willfully failed to provide access to the books and records to the petitioner. It is, therefore, found that respondent did willfully fail to provide documents upon request, and that 5

6 respondent is liable to petitioner for the $500 penalty prescribed in Section (12), Florida Statutes. Based on the foregoing, it is hereby ORDERED that: 1. The relief requested in the petition in reference to petitioner s plumbing problems is denied. 2. Respondent shall within 30 days of the date of this order pay the sum of $500 to petitioner. DONE AND ORDERED this 3 rd day of January, 2003 at Tallahassee, Leon County, Florida. Karl M. Scheuerman for Jeffery S. Richardson, Arbitrator Dept. of Business and Prof. Regulation Arbitration Section Northwood Center 1940 North Monroe Street Tallahassee, Florida 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 3rd day of January, 2003: Mark M. Heinish, Esq. Katzman & Korr, P.A West Oakland Park Blvd. Second Floor Ft. Lauderdale, Florida David H. Rogel, Esq. 6

7 Becker & Poliakoff, P.A Blue Lagoon Drive, Suite 100 Miami, Florida Karl M. Scheuerman, Arbitrator Right to Appeal As provided by s , F.S., this final order may be appealed by filing a complaint 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. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees As provided by s , 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. 7

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