STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SOUTH BAY CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2011-03-3851 WILLIAM BONDY, Respondent. / SUMMARY FINAL ORDER Pertinent Procedural History On July 12, 2011, Petitioner, South Bay Club Condominium Association, Inc. (Association) filed an Amended Petition for Mandatory Non-binding Arbitration naming William Bondy as Respondent. The Association alleges that Respondent is improperly docking his boat at the Association s docks. On September 1, 2011, Respondent filed a response which is deemed to be Respondent s Answer. Respondent admits he is a member of the Association through the ownership of his unit, but alleges that he has a contract with the Association to rent the slip and, therefore, his use of the dock/slip is commercial and not subject to the mandatory non-binding arbitration provisions of Section 718.1255, Florida Statutes. Respondent s Motion to Dismiss On August 29, 2011, the undersigned entered a Notice and Order to Show Cause which, in pertinent part, requiring the Association to file a legible copy of the Association s governing documents by 5:00 p.m. on September 9, 2011. On September 1
14, 2011, the undersigned entered an Order to Show Cause why the case should not be dismissed for the Association s failure to comply with the arbitrator s August 29, 2011 Order. On October 6, 2011, the Association filed legible copies of the Association s governing documents. On October 26, 2011, Respondent filed a Proposed Recommended Final Order Dismissing the Petition for the Association s failure to comply with the arbitrator s orders of August 29 and September 14, 2011, pursuant to Rule 61B-45.036, Florida Administrative Code. follows: Rule 61B-45.036(1), Florida Administrative Code, provides, in pertinent part, as The failure or refusal of a petitioner to comply with any lawful order of the arbitrator or with a provision of these rules shall result in a dismissal of the petition or individual claims or imposition of costs and attorney s fees, or both, as appropriate, where such failure is deemed willful, intentional, or a result of neglect. The dismissal of any petition pursuant to this rule shall not be considered a decision on the merits of the petition. The rule authorizes the arbitrator to determine whether the imposition of various sanctions is appropriate. In this case, the Association filed with the petition, a generally illegible copy of the Association s governing documents. However, the failure of the Association to comply with the arbitrator s orders did not impede the arbitrator s ability to make a determination in this case. Statement of Issues 1. Whether Respondent s rental of the Association s dock/slip is a commercial use not subject to the mandatory non-binding arbitration provisions of Section 718.1255, Florida Statutes? 2. Whether Respondent is improperly keeping his boat in the Association s common element dock/slip? 2
Findings of Fact 1. Petitioner, South Bay Club Condominium Association, Inc. (Association) is the corporate entity responsible for the operation of South Bay Club Condominium. 2. Respondent, William Bondy, is the owner of Unit 625, and by virtue of owning the unit, is a member of the Association. 3. By virtue of his membership in the Association, Respondent is eligible to pay a fee to the Association to dock his boat at an assigned slip at the Association s common element dock. 3. Section 20 of the Association s Rules and Regulations states: No boat shall be docked at the docks appurtenant to the Condominium Property without the consent of the Association. The Association shall have the right to charge a fee for the use of such dock space. 4. Respondent pays a fee to the Association for the use of dock space. 5. It is undisputed by the parties that the Association s docks/slips are subject to the 40-year recertification process as required by Miami-Dade County. 6. In 2009, the Association retained the services of Pistorino & Alam, P.A. (Pistorino) to study the sea wall, dock and slips. 7. On February 21, 2011, Pistorino issued a preliminary analysis which recommended the dock was unsafe and should be closed without delay. 8. The February 21, 2011 Pistorino report is unrefuted by Respondent. Conclusions of Law The Association is an association within the meaning of Section 718.103, Florida Statutes. Pursuant to Section 718.1255, Florida Statutes, the undersigned has jurisdiction over the parties to, and the subject matter of, this dispute. If no disputed issues of 3
material fact exist, the arbitrator may enter a summary final order. Fla. Admin. Code R. 61B-45.030. The Petition alleges Respondent has failed to comply with the Association s demand to remove his boat from the Association s docks/slips in order for the Association to effectuate necessary repairs to obtain a forty-year (40) recertification, as required Maimi-Dade County. Respondent s defense is that he has paid rent for the use of the dock/slip until December 31, 2011. Jurisdiction 1. Commercial Use Respondent s defense is that his payment of a fee to the Association for the use of the Association s common element dock converts his use of the dock from that of a unit owner to a commercial use. Respondent provides neither statutory nor case law authority for this position. Accordingly, Respondent s analysis is without merit. 2. Jurisdiction Section 718.1255, Florida Statutes, define disputes eligible for arbitration as any disagreement between two or more parties and the authority of the board of directors or the association s governing document. An eligible dispute for arbitration requires any owner to take or not to take any action involving that owner's unit or the appurtenances thereto, or involving the alteration or addition to a common area or element of the condominium property. In this case, the Association has filed a petition alleging that Respondent is improperly keeping his boat at the Association s dock which is a common element 4
appurtenance to the condominium. Accordingly, this dispute is within the jurisdiction of the arbitrator, and Respondent s assertion is without merit. Association s Powers and Duties Section 5.(a) of the Association s Bylaws, states, in pertinent part, as follows: Powers and Duties. The Board of Directors shall have the powers and duties necessary for the administration of the affairs of the Condominium and may take all acts, through the proper officers of the Association, in executing such powers, except such acts which by law, the Declaration, the Articles or these By-laws may not be delegated to the Board of Directors by the Unit Owners. Such powers and duties of the Board of Directors shall include, without limitation (except as limited elsewhere herein) the following: (a) Operating and maintaining the Common Elements. Typically, the Association has the powers and duties to operate and to maintain the Association s property, including the Association s common element dock. The Association s demand for the removal of a unit owner s boat from the Association s common element dock falls within the bounds of the business judgment rule. See Tresize v. Holiday Apartments Condo. Ass n., Inc., Arb. Case 02-4660, Final Order (September 11, 2002)(the actions of the board in maintaining the common elements are protected by the business judgment doctrine and there was no showing that the board had been arbitrary or irrational.) In applying the rule, courts apply a two-prong test: 1) whether the Association has the contractual or statutory authority to perform the relevant act, and 1) whether the Board s acts are reasonable. In the case at hand, Section 8-11(f) of the Miami-Dade County Code, requires recertification of 40-year-old sea walls, deck and slips. In 2009, the Association hired Pistorino & Alam, P.A. to study the Association s sea wall, deck and slips for the recertification process. On February 21, 2011, Pistorino issued a preliminary analysis 5
which recommended the deck was unsafe and should be closed without delay. Based upon the report, the Association informed the unit owners who were renting slips that the dock was unsafe and that their boats needed to be removed in order for the Association to effectuate repairs. Accordingly, the Association s decision to require the removal of a unit owner s boat from the Association s common element dock falls within its duty and the act is reasonable based upon the evidence presented. Based upon the foregoing, it is ORDERED: 1. On or before 5:00 p.m. on December 31, 2011, Respondent shall remove his boat from the Association s common element dock. 2. If Respondent fails to comply with the immediately preceding Paragraph 1, then the Association may hire a professional boat moving company to remove Respondent s boat, with removal and storage costs to be paid by Respondent. 3. Respondent s motion for dismissal is DENIED. 6
DONE AND ORDERED this 27 th day of December, 2011, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Facsimile: (850) 487-0870 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. As provided by section 718.1255, Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B-45.048. 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 27 th day of December, 2011: Jonathan A. Yellin, Esquire FAX: 954-333-3562 The Yellin Law Firm, P.A. 1401 East Broward Blvd. Suite 204 Fort Lauderdale, Florida 33301 Sean M. Ellsworth, Esquire FAX: 305-535-2881 Ellsworth Law Firm, P.A. 1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139 Tonya S. Chavis, Arbitrator 7