v. Case No SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and issues this summary final order as

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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 Royal Park Condominium Association, Inc., Petitioner, v. Case No Patti Lynn, Respondent. / follows: SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and issues this summary final order as The association filed its petition in this matter on September 11, The petition alleges that the respondent refused to place an identifying sticker on her automobile windshield as required by the rules and regulations of the association. As relief, the association requests entry of a final order requiring the respondent to place a parking sticker on her windshield and enjoining the respondent from keeping her vehicle on the condominium property so long as she refuses to comply with the paragraph 2 of the rules and regulations. Respondent filed her answer on September 28, According to the answer, prior parking decals measured 1 ½ inches square, creating no obstruction of vision, but the current decal is much larger (3 inches square and opaque), and according to the respondent, the sticker impairs her ability to see out of the windshield. Respondent maintains that she is 5 feet tall. She alleges that a portion of the vehicle code prohibits the 1

2 placement of any material that obstructs vision through the windshield. She also alleges that the decal rules are being selectively enforced, and attached to her answer a series of photographs taken over a 3 month period showing various automobiles that do not have the required sticker in the approved position. The arbitrator issued an order on October 4, 2000, requiring additional information. The order notes that the photographs submitted by respondent were not labeled or otherwise explained, and required that respondent provide a description of the photographs. The order also required that respondent provide photographs showing her line of vision out of her windshield in relation to the sticker required to be applied by the association. This additional information was filed on October 18, By order entered on November 2, 2000, the association was ordered to reply to the affirmative defenses presented with the answer. The order also notified the parties that the reasonableness of the parking rule was an issue of law that could be decided without a fact-finding hearing, given the lack of disagreement on certain issues. The order gave the parties an opportunity to present written legal arguments on the reasonableness of the rule. The association filed its reply on November 28, 2000, stating: Royal Park s rationale behind the policy of the decals is to eliminate the problem of subleasing and time-sharing to tenants who will not be screened by the Royal Park board. For each resident and tenant s safety and quiet enjoyment at the premises, all residents or tenants are to be screened within 30 days from the date of occupancy per the condominium bylaws.in April, 2000, the policy was implemented that all unit owners and renters had to adhere decals on their windshields in order for Royal Park to control parking on the premises and, most importantly, to ensure that unauthorized vehicles and/or individuals are not allowed onto the property. In its reply, the association further indicates that Ms. Lynn is permitted to place the decal at 2

3 the very top of her windshield so as not to block her view out of the windshield. There is no indication in the record that prior to the filing of the petition, respondent was presented with the option of placing the sticker on the topmost part of the windshield. The association on December 4, 2000, filed the affidavits of two board members or former board members who stated that the purpose of the stickers is to allow guards to identify the residents and grant access into the complex only to authorized residents, for the purpose of eliminating time-sharing and sub-leasing within the complex. The affidavits further indicate that all residents are required to comply with the rules. It is also stated that the respondent, a former board member, was aware of and has even helped enforce the parking sticker rules. In a supplemental reply filed on December 15, 2000, the association argued that the respondent, as a board member, never contested the use of the decals or its design while sitting on the board. Copies of decals from selected years between 1992 and 1998, non-inclusive, were attached showing the dimensions of previous stickers used by the association residents. The present decal measures approximately 3 ¼ inches by 3 inches. According to the association, the decal used for 1993, 1994 and 1995 measured 3 ½ inches square. The decal utilized in 1996 measured approximately 3 ¾ inches square. As an additional preliminary matter, the arbitrator, unable to locate paragraph 2 of the rules and regulations in the petition or among its attachments, telephoned counsel for the association to obtain a copy of rule paragraph 2. This page of the rules was faxed to the arbitrator on January 25, As indicated in the cover letter from counsel, the rule itself does not expressly require the placement of parking stickers on the window; instead, it has been the policy of the association for a number of years to require display of the 3

4 decal on the windshield. Paragraph 2 provides as follows: (2) Owners & Lessees MUST register their license place [sic] numbers and make and model of their vehicle(s) with the Association office in order to receive a numbered decal. Residents will only be admitted by decal or Royal Park photo ID. Decals are NOT TRANSFERABLE. The reasonableness of the parking sticker policy 1 will be examined first. The rule of reason comes into play when an owner seeks to challenge a board policy or rule: The rule of reasonableness in these instances is designed to somewhat fetter the discretion of the board of directors [T]he board is required to enact rules and make decisions that are reasonably related to the promotion of the health, happiness, and peace of mind of the unit owners. [Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, (Fla. 4 th DCA 1981)]. Applying this test to the facts of this case, it is not subject to serious debate that the objectives of the association pursued by the sticker policy are legitimate association objectives. An association has a strong interest in monitoring and controlling those persons entering the premises. The sticker policy, operating in conjunction with a gated secured entranceway, enhances the ability of the association to provide security and protection to the residents, and may offer the association the ability to exclude persons who might pose a risk to the personal safety and property interests of the residents and the association. In addition, the sticker policy better enables the association to enforce the rental restrictions contained in its documents. It has been held that where the documents require the screening and pre-approval of tenants and visitors, and the payment of a transfer fee for rentals, an association rule requiring the completion of a form permitting a family member to stay in the unit is reasonably related to the objectives of the association 1 Respondent has not argued that the policy must be reduced to writing, and the arbitrator is unaware of any such requirement under these stated circumstances. The reasonableness of the policy may be examined just as the reasonableness of a rule. 4

5 and is valid. Franklin v. Vista Verde North Condominium Association, Inc., Arb. Case No , Summary Final Order (July 26, 2000). Ensuring the maximum amount of tenant screening revenue, thus decreasing monthly assessments to the extent possible represents a valid objective, as is enforcement of the association s documents. Vista Verde. In sum, it is concluded that the objectives of the association are valid. The next inquiry is whether the means chosen by the association to accomplish the stated purpose are reasonably related to the objectives sought to be advanced. Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 189 (Fla. 4 th DCA 1975). Certainly a board rule which is contrary to a controlling state statute is per se unreasonable and invalid. In this respect, the arbitrator has examined the provisions of the vehicle code asserted in defense by respondent. Section , F.S., provides in part as follows: Windshields; requirements; restrictions. (2) A person shall not operate any motor vehicle on any public highway, road, or street with any sign, sunscreening material, product, or covering attached to, or located upon, the windshield, except the following: (a) A certificate or other paper required to be displayed by law. (b) Sunscreening material along a strip at the top of the windshield (c) A device, issued by a governmental entity for the purpose of electronic toll payments. The statute set forth above does not expressly prohibit the placement of small identifying stickers as may be required by the controlling documents of a condominium or homeowner s association. There is no intent expressed in the statute to overrule the requirements of private covenants or declarations. The arbitrator is reluctant to impart that intent to the statute without a more persuasive indication of legislative intent. Moreover, the placement of a small identifying sticker in the context of a community association falls within the intended ambit of the statute. In a sense, placement of the parking sticker is 5

6 required by law within the meaning of the statute since the provisions of the condominium documents are presumed valid and are binding on each unit owner, and may be enforced in the courts upon proper petition. See, s , F.S. In addition, an association, given its all-encompassing authority over the property and residents forming the community, shares many attributes of a governmental entity including the power to assess 2, the power to maintain, repair, and replace the common elements 3, the power to enforce its governing documents 4, the power to incorporate additional lands within its boundaries 5, and the right to maintain offices and the obligation to conduct its meetings and other official business in the sunshine, including those provisions relating to open meetings and the right of access to official records. 6 Given these similarities, the intent of the statute in prohibiting signs on windshields but making exceptions where signs or stickers are required by a governing entity, is not violated by the placement of a small parking sticker designed to further the legitimate goals of a condominium association. Therefore, it is concluded that the statute is not violated in this instance. Similarly, s , F.S., does not per se prohibit the requirement of parking decals to be placed on the windshield. This section provides in part as follows: Obstruction to driver s view or driving mechanism. (2)(b) No person shall drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, side wings, or side or rear windows of such vehicle which materially obstructs, obscures, or impairs the driver s clear view of the highway or any intersecting highway. It cannot be said that the parking decal challenged here, which is apparently a standard 2 See, s (4), F.S. 3 See, s (1), F.S. 4 See, s , F.S. 5 See, ss , (7), F.S. 6 See, ss (12), (2)(c), F.S. 6

7 size used in many communities, as a matter of law materially obstructs drivers views generally. It may well be that drivers of average height will have no difficulty operating their vehicles safely with the sticker attached as required. Whether it materially obstructs a particular driver s view, such as respondent s view, is not related primarily to the validity of the parking policy on its face, but is more related to whether the association, applying the policy to this particular individual, has acted reasonably or has instead acted arbitrarily or unreasonably, an issue discussed below. Having sustained the facial validity of the rule vis a vis the vehicle code, however, does not absolve the association of its duty to act reasonably. It goes without saying that an association rule requiring the residents to affix a particularly large or conspicuous sticker to the windshield that is shown to obscure the vision of the driver or which unduly distracts the driver is beyond the authority of the association. If it is shown in a particular instance that enforcement of the rule will lead to arbitrary or unreasonable results, the association is required to temper its enforcement effort to avoid these results. For example, if the placement and size of the sticker obscures the vision of those residents having a diminutive stature, the association is required to exhibit flexibility in its administration of the vehicle identification program and should permit alternate placement or the use of substitute bumper or dashboard displays. 7 If a bumper display serves the purpose of the association in identifying the vehicle as belonging to a unit owner, and fulfills this purpose equally well as windshield placement without any attendant danger of obscuring the driver s ability to see the road, the association would be hard pressed to explain or justify its failure to permit the alternative placement. Here, the association indicates that as an alternative to placement of the sticker in 7

8 the lower driver s side of the windshield, where it may obscure a shorter driver s vision of the road, it will permit the sticker to be placed in the upper region of the windshield and out of the line of the driver s sight. In this case, it is evident from the photographs submitted by the respondent that placement of the sticker in the primary area designated by the association results in a barrier to the respondent s effective vision of the roadway, thereby potentially jeopardizing the safety of both the 7 To the extent that the dashboard display of certain types of materials would tend to create glare, the association should also take this factor into account. 8

9 respondent and persons in proximity to respondent s car, such as the grocery store employee pushing a cart illustrated in the photograph designated as Exhibit A attached to this order. As such, the association is required to offer an alternative accommodation to the respondent. The association has done so. It has not been shown that the alternative offered by the association in this case is unreasonable. Similarly, the respondent has not made a sufficient showing to justify a finding of selective enforcement. The defense of selective enforcement involves the failure of the association to enforce the documents in other instances bearing sufficient similarity to the instant case to warrant the conclusion that it is discriminatory, unfair, or unequal to permit the association to enforce the restriction in the present case. Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (September 4, 1996); Order on Request for Clarification (October 9, 1996). Assuming as claimed by respondent that certain vehicles have car covers in violation of the parking rules, it is found that this violation is not comparable to the violation sought to be addressed here by the association. Also, the fact that certain automobiles parked in the lot have no license plates or have expired tags, are backed into the spaces, are commercial vehicles, and that a tenant was issued a 3 month visitor pass rather than a regular visitor pass, does not warrant a finding of selective enforcement on the parking sticker violation. These other violations are not similar and do not warrant a finding of selective enforcement. The respondent has also included photographs showing that during the period from July through September 2000, some vehicles found on the condominium property did not exhibit parking stickers. The respondent has provided 4 photographs of the same stickerless pickup parked on the property on one day, without identifying who the vehicle belongs 9

10 to, whether it even belongs to an owner or tenant, what circumstances led the truck to be parked on the property, or other relevant information. From the photographs supplied it appears likely that the truck is a work truck on the property to perform services for the association or an owner. There is no allegation that the truck ever appeared on the property again. Respondent also submitted photographs of several vehicles with visitor tags placed on the dashboard visible through the windshield in lieu of permanently mounting a parking sticker on the windshield. It appears to make sense that visitors should not have to affix a permanent sticker to their windshield if they are only visiting and have no need for a permanent sticker on their windshield. Therefore, assuming that visitors are allowed to place a pass on the dashboard, there is good reason for this disparate treatment and no selective enforcement will be found. The association indicates that visitors under the board s parking policy are indeed treated differently than owners, and that visitors are given passes showing the length of time of their stay, to be placed on the dashboard. Visitors staying over 30 days are required to apply for and obtain a regular parking decal to be installed on the windshield. All told, the respondent has produced multiple photographs of 2 or perhaps 3 vehicles that appeared on the premises between June and November 2000 that have no sticker. None have been linked to any particular owner or tenant or visitor on the property, and no photographs have been produced showing any current violations of the sticker rule of the association. Respondent does not suggest that the board was aware of these vehicles, and neither has respondent stated that she brought these violations to the attention of the board and demanded that the violations be pursued. There are 670 units in the condominium, and it is reasonable to assume that at least some of the owners have 10

11 more than one vehicle. It cannot be said that two or three violations not shown to be currently occurring in a condominium of this size shows an intent, express or implied, by the board to ignore the parking violations other than respondent s. Under these circumstances, it is concluded that respondent has failed to show that the association is selectively enforcing its sticker rule. WHEREFORE, based on the foregoing, the respondent is not found to have violated the rule, paragraph 2, but is found to have violated the decal policy of the association. The respondent is ordered to comply with the parking sticker policy and shall affix the sticker in some place as designated by the association in its exercise of sound business judgement, other than placement at the bottom driver s side portion of the windshield, which might include the bumper, the forward portion of the side view mirror on the driver s side, the uppermost portion of the windshield, or some other place. DONE AND ORDERED this 30th day of January, 2001, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 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 30th day of January, 2001: Paul O. Lopez, Esquire, Tripp Scott, P.A., 110 S.E. 6 th Street; 15 th Floor, Ft. Lauderdale, Florida 11

12 33301, and to Patti Lynn, 112 Royal Park Drive; #1A, Oakland Park, Florida Right to Appeal Karl M. Scheuerman, Arbitrator As provided by s , F.S., this final order may be appealed 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. 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 cost 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. 12