STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES SUMMARY FINAL ORDER

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Raymond M. Clooney and Suzanne P. Clooney, Petitioners, v. Turkey Creek Villas Condominium Association, Inc., Case No Respondent. / SUMMARY FINAL ORDER Statement of the Issue Is the Respondent, Turkey Creek Villas Condominium Association, Inc. ( Association ) responsible for the maintenance, repair, and replacement of the copper pipe carrying Freon to the Petitioners air conditioner, considering the fact that the copper pipe runs through the walls inside 1. The Petitioners unit; and, 2. The unit downstairs from the Petitioners? Procedural History On December 17, 2009, Rodney and Suzanne Clooney filed a Petition for Arbitration against the Association asking that 1. The Association be required to replace the copper piping to their air conditioning unit; and, 2. They be reimbursed for the cost of installing the temporary copper pipe until the final repair can be made. 1

2 On January 15, 2010, the Association answered the Petition, asserting that the Division does not have jurisdiction over the dispute and requesting dismissal of the Petition. Alternatively, the Association asks that the Request for Relief in the Petition be denied because replacing or repairing the copper piping carrying Freon to the Petitioner s air conditioner is not the responsibility of the Association. On February 2, 2010, the Petitioners filed a A. Response to the Motion to Dismiss; and, B. Motion for Summary Decision. After reviewing the filings by each party, including the governing documents, there are no questions of fact remaining, and entry of a Summary Final Order is appropriate. Fla. Admin. Code R. 61B (2009). FINDINGS OF FACT 1. The Association is the corporate entity that manages the residential condominium in Brevard County, Florida. 2. Petitioners own Unit 203, 1011 Troutman Blvd. N.E., and are members of the Association by virtue of owning this unit. 3. Petitioners own Unit 203, but they do not live there; Suzanne Clooney s elderly mother lives in the unit. 4. On October 9, 2009, the air conditioning in Unit 203 stopped working due to a leak in the copper piping carrying Freon to the air conditioner. The pipe runs through the walls of the Petitioners unit and also through the walls of the unit below. 2

3 5. Upon learning of the air conditioning problem in their unit, the Petitioners contacted the Association s management company and the President of the Board of Directors to request that they repair or replace the copper piping. 6. The Board of Directors advised Petitioner Suzanne Clooney that the Association was not responsible for repairing or replacing the copper piping. Due to the elderly resident s physical condition, the Petitioners employed Atlantic Air to do the work immediately. 7. Board members appeared on site when Atlantic Air came to the condominium unit to make the repair, and those Board members prevented Atlantic Air from executing a complete repair for the problem because such repair necessitated going behind the walls of A. The Petitioners unit; and, B. The downstairs occupant s unit. 8. For this reason Atlantic Air arranged for a temporary fix to the problem, by placing copper piping around the outside of the building so that the air conditioning could function without further interruption. 9. The work Atlantic Air did to arrange the temporary placement of the copper piping on October 9, 2009, cost Petitioners $ Petitioners requested that the Association reimburse them for this cost, since air conditioning piping located in the common elements was the responsibility of the Association. 10. By a letter dated October 22, 2009, the Association told Petitioners A. On or before November 9, 2009 (i) they must remove the copper piping Atlantic Air had placed on the outside of the building; 3

4 (ii) they must repair any damage to the soffits or other portion of the building caused by placement of the copper piping; B. Petitioners are responsible for the repair and replacement of the copper piping, irrespective of where such piping is located; and, C. Petitioners request for reimbursement of $ is denied. 11. On December 17, 2009, Petitioners filed the instant Petition for Arbitration asking that the Association be ordered to A. Repair or replace the copper piping carrying Freon to their air conditioner, based upon subsection of the Declaration; B. Reimburse the Petitioners $ for the temporary placement of their copper piping; and, C. Pay Petitioners costs for bringing this action. 12. The Association, on January 22, 2010, filed an Answer to the Petition and a Motion to Dismiss. 13. The Motion to Dismiss generally alleges that this Division is without jurisdiction to resolve the dispute under , Fla. Stat. (2009) because it includes a claim for damages. The Association further asserts that, irrespective of the jurisdictional issue, the Association is not liable for the repair or replacement of the copper piping, pursuant to subsection of the Declaration. 14. On February 2, 2010, the Petitioners filed a Response to the Motion to Dismiss and a Motion for Summary Decision. CONCLUSIONS OF LAW Jurisidiction The Association, between its Answer and Motion to Dismiss, asserts that the Division has no jurisdiction over this dispute for two reasons: 4

5 1. The nature of the dispute is not one of those listed in (1), Florida Statutes (2009); 2. The Petitioners request for reimbursement of $ is a claim for damages over which the Division has no jurisdiction. With regard to the first reason, Section (1)(a), Florida Statutes (2009) specifically grants this Division jurisdiction to determine the authority of the board of directors to require any owner to take any action, or not to take any action, involving that owner s unit or the appurtenances thereto. Fla. Admin. Code R. 61B (7) (2009), which interprets this portion of the statute, states that disputes involving the failure of an association to maintain the common elements falls within the arbitrator s jurisdiction when that failure has a disparate impact on the petitioner s unit. Wanda Dipaola Stephen Rinko General Partnership v. Beach Terrace Ass n., No , 2008 WL (Fla. DBPR Arb.). Accordingly, the Division has jurisdiction to determine if the Association can properly direct the Petitioners to replace or repair the copper tubing carrying Freon to their unit. As for the second reason, the definition of dispute in Section (1), Florida Statutes (2009), reads as follows: Dispute does not include any disagreement that primarily involves... claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. [emphasis added]. The primary claim in this Petition is for the Association to replace or repair the copper piping that carries Freon to Petitioners air conditioner. The history of arbitration case law recognizes that the nature of the primary claim in the Petition is what determines the question of jurisdiction. See Conagham v. Corinthian Gardens, Inc., No , 2008 WL (Fla. DBPR Arb.) (dismissing the Petition where 5

6 Petitioner s only claim was for monetary reimbursement due to Association s failure to maintain common elements); Glickfield v. Regency Tower Condo. Ass n., No , 2003 WL (Fla. DBPR Arb.) (dismissing Petition where the primary purpose of it was to collect damages for wrongful imposition of a transfer fee); Valencia Condominium Residences Ass n., Inc., v. Banoub, No , 2000 WL (Fla. DBPR Arb.) (An award for attorney s fees was based upon granting the primary relief requested in the Petition receipt of an entry key; the monetary damage claim for $640 was a secondary claim). The Petitioners claim for $ is not the primary claim of the Petition. The request for $ stems from the same facts and Declaration provisions as the primary claim. Although the arbitrator has discretion to sever the secondary claim, under Florida Administrative Code Rule 61B (4) (2009), the undersigned declines to do so. The facts of the primary and secondary claims are inextricably interwoven, and in the interests of judicial economy compel the undersigned to retain jurisdiction over both claims. See Maris Distributing Co. v. Anheuser-Busch, Inc., 710 So 2d 1022, 1024 (Fla. 1 st DCA 1998). The Association s Motion to Dismiss due to lack of jurisdiction is DENIED. Responsibility for the Repair / Relocation of the Copper Piping The question as to which party is responsible for repair / replacement / relocation of the copper piping is a matter that can be determined from the Declaration of Condominium. Both parties have cited to a subsection location within Article XII to support their respective positions. 6

7 Subsections and of the Declaration dictate who is responsible for repairs to the air conditioning unit. Subsection 12.01, in pertinent part, states as follows: Each Unit owner shall bear the cost and be responsible for the maintenance, repair and replacement, as the case may be, of all air conditioning and heating equipment,..... Such owner shall further be responsible for maintenance, repair and replacement of any air conditioning equipment servicing his Unit although such equipment may not be located in the Unit,... [emphasis added]. Subsection 12.02, in pertinent part, states as follows: The Association, at its expense, shall be responsible for the maintenance, repair and replacement of all the common elements and limited common elements, including... all conduits, ducts, plumbing, wiring and other facilities located in the common elements, for the furnishing of utility services to the Units, and including artesian wells, pumps, piping, and fixtures serving individual air conditioning units.... [emphasis added]. Subsection of the Declaration requires the Unit owner to bear the cost and responsibility for maintenance of air conditioning equipment. By contrast, subsection requires the Association to bear the cost and responsibility for piping located inside the common elements that serves individual air conditioning units. This case involves copper piping located inside the common elements. Accordingly, subsection applies, and the Association is responsible for that expense and repair (or replacement). Reimbursement Request for $ In light of the fact that the same facts and Declaration provisions govern the Petitioners claim for $ to have the temporary piping installed on the outside of the building, the Association is also liable to reimburse the Petitioners for that amount of money. The Petitioners submitted their documented claim to the Association in October 7

8 of 2009, and the Association specifically rejected it for the reason that the Association believed it was not responsible for the copper piping. The Association did not take issue with the amount of the claim. Accordingly, the $ is to be paid to the Petitioners. Based upon the foregoing, IT IS ORDERED: On or before March 10, 2010, the Association is to do the following: A. Repair or replace the copper piping carrying Freon to the Petitioners air conditioner, relocating the piping from the outside of the building to its proper location behind the walls of the Petitioners unit and the walls of the unit owner directly below the Petitioners; B. Reimburse the Petitioners the amount of $ DONE AND ORDERED this 5 th day of February 2010, at Tallahassee, Leon County, Florida. Shirley J. Whitsitt, Arbitrator Dept. Bus. and Prof. Reg., Arbitration Section 1940 North Monroe Street Tallahassee, Florida Fax: (850) Trial de novo and Attorney s Fees As provided by Fla. Stat. (2009), this decision is binding on the parties unless a complaint for trial de novo is filed within 30 days of the date of this Order; additionally, the prevailing party is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed within 45 days of the date of the Final Order. 8

9 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing Final Order was served upon the following individuals by U.S. mail, postage prepaid, this 5 th day of February Raymond and Suzanne Clooney 502 Willow Stone Way Louisville, KY J. David Davila, Esq. Clayton & McCulloh 1065 Maitland Center Commons Blvd. Maitland, FL Shirley J. Whitsitt, Arbitrator 9