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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WATERGLADES 300 CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No ALGORA INTERNATIONAL, INC., Respondent. / SUMMARY FINAL ORDER Relevant Procedural History On February 8, 2017, Waterglades 300 Condominium Association, Inc., (the Association) filed a petition for non-binding arbitration naming Algora International, Inc. as Respondent. The petition alleges that Respondent is preventing access to its unit and thereby preventing the Association from installing mass notification and emergency communication speakers (alarm speakers), which are components to the Association s new fire alarm system, in the unit s two bedrooms. An Order Requiring Answer was entered on February 16, Respondent filed an answer on March 1, Findings of Fact 1. Waterglades 300 Condominium Association, Inc., is the legal entity responsible for the maintenance and operation of Waterglades 300, a Condominium. 2. Respondent Algora International, Inc. is the owner of Unit 22A of Waterglades 300, and a member of the Association. 3. The Condominium was built in 1975, consisting of 100 units. Page 1 of 6

2 4. In the spring of 2016, the Riviera Beach Fire Marshall advised the Association that their fire alarm system installed in 1975 was no longer code compliant. 5. On June 14, 2016, the Association contracted with Advanced Alarm to install a new system. 6 In its answer, Respondent admits that it has denied access to its two bedrooms. Respondent does not agree with the Fire Marshall s interpretation of the fire codes or the Association s decision to install alarm speakers in every bedroom in the Condominium. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes. Rule 61B , Florida Administrative Code, requires entry of a Summary Final Order when no disputed issues of material fact have been raised by the pleadings. The authority of an Association to enter a condominium unit without the owner's permission is based upon Section (5), Florida Statutes, which provides: (5) RIGHT OF ACCESS TO UNITS. The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to common elements or to a unit or units. The interest of Respondent to protect its property behind the locked door of its unit must yield to the need for the Association to protect condominium property. The Declaration puts Respondent on notice that condominium property also lies behind the locked door to its unit, including walls, pipes, wires, conduits and utility lines. Page 2 of 6

3 It is a basic principle of condominium law that, by choosing to live in a condominium, individual unit owners give up certain freedoms and accept certain restrictions upon rights which could be expected in separate, privately-owned property. Woodside Village Condo. Ass n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). The statute provides two broad purposes for access: for maintenance or to prevent damage. Cypress Isle at the Polo Club Condo. Ass n. Inc. v. Shelton, Arb Case No (July 22, 1998). Use of the word irrevocable emphasizes the legislative intent that the right of access cannot be limited by governing documents of a condominium or by a negotiated condition in the sale of units. Access will be allowed even when a unit owner has given a written warning that the association should not enter a unit. See Hidgon v. Seaspray Condo. Ass n, Inc., Arb. Case No , Final Order (March 24, 1998). Respondent s defense that the Association has not met its conditions for entry is invalid. Respondent has demanded that the Association require the Fire Marshall to provide more proof that the alarm speakers are required under the code. An impermissible denial of access occurs where a unit owner seeks to place conditions upon the association's access to its unit. Park Lake Towers Condo. Ass n, Inc. v. Halley, Arb. Case No , Amended Final Order on Motions for Attorney's Fees (January 28, 2004)(Where the association sought access to the respondent's unit in order to fix a plumbing assembly, and where the respondent directed that the association would only be permitted access upon providing proof of insurance and a valid building permit, the respondent was held to have denied access to the unit.) Page 3 of 6

4 Additionally, the arbitrator does not have jurisdiction over building code violations. The local building official is responsible for determining the violation and any steps necessary to obtain compliance. Son v. The Gardens of Key Biscayne-Alhabmbra Condo. Ass n, Inc., Arb. Case No , Summary Final Order (June 13, 1995) (arbitrator declined jurisdiction of a petition for mandatory non-binding arbitration seeking enforcement of the South Florida Building Code with respect to the petitioner s desire to install a stairway from the petitioner s unit to the roof of the condominium). However, a unit owner may withhold access if the unit owner can show that the Association s actions are unreasonable and unnecessary. Small v. Devon Condo. B Ass'n Inc., 141 So. 3d 574 (Fla. 4th DCA 2014). Pursuant to Section (3), Florida Statutes, the Association has the powers and duties to operate and to maintain the Association's property, including the fire alarm system. The Association s decision if and how to upgrade its fire alarm system falls within the bounds of the business judgment rule. See Tresize v. Holiday Apartments Condo. Ass'n, Inc., Arb. Case No , 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 twoprong test: 1) whether the Association has the contractual or statutory authority to perform the relevant act, and 2) whether the Board's acts are reasonable. Id. Section (3), Florida Statutes, and the Association s governing documents provide the board of directors with the authority to maintain the condominium which would include installing and utilizing a fire alarm system. Even assuming the Fire Marshall is incorrect that the fire code requires the alarm speakers, Respondent has Page 4 of 6

5 provided no facts in its answer that the board of directors has acted unreasonably or arbitrarily in its decision on whether and how to upgrade its 1975-installed fire alarm system. Respondent s attempt to second guess the Association s decision is invalid. If Respondent does not approve of the Association s decision, its recourse is to elect representatives who agree with it. Based upon the foregoing, it is ORDERED: 1. On or before April 6, 2017, Respondent Algora International, Inc. shall provide access to its unit to the Association s contractor for the purpose of installing the alarm speakers and maintaining the fire alarm system. 2. If Respondent does not take affirmative steps by April 6, 2017, to provide access, the Association s contractor may enter into its unit, but after announcement at a reasonable time (between the hours of 8:00 am and 5:00 pm during the workweek) for the purpose of installing the alarm speakers and maintaining the fire alarm system. 3. Respondent shall provide access to any government official who requires inspection of the fire alarm system. Florida. DONE AND ORDERED this 6th day of March, 2017, at Tallahassee, Leon County, Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 2601 Blair Stone Road Tallahassee, Florida Telephone (850) Facsimile (850) Page 5 of 6

6 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 , Florida Statutes. As provided by section , 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 Rule 61B , Florida Administrative Code. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and ) to the following persons on this 6th day of March, 2017: Robert I. Rubin, Esq. Becker & Poliakoff, P.A. 625 N. Flagler Drive 7 th Floor West Palm Beach, FL rrubin@bplegal.com Attorney for Petitioner Algora International, Inc. c/o Claudiu and Andrea Secara 5510 N. Ocean Drive, Unit 22-A Singer Island, FL claudiu@earthlink.net Respondent Terri Leigh Jones, Arbitrator Page 6 of 6