STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION The Four Ambassadors Association, Inc., Petitioner, v. Case No. 01-3350 Lindsay Properties, Inc., Respondent. / FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: The association filed its petition for arbitration in this matter on June 25, 2001, seeking entry of a final order requiring the respondent to remove the washer and dryer installed in respondent s unit. The petition has been amended a number of times, most recently with the filing of petitioner s second amended petition on August 23, 2002, shortly in advance of the scheduled final hearing in this matter. The current petition alleges that the respondent violated several portions of the declaration along with association rules prohibiting washers and dryers in the units. This case was transferred to the undersigned arbitrator on August 16, 2002. The final hearing in this matter was conducted by the arbitrator via teleconference call on September 13, 2002. The hearing lasted approximately 3 hours and the parties filed proposed final orders by October 10, 2002. The facts 1
provided below are based on the totality of the witness testimony and documentary evidence admitted at the final hearing. The Four Ambassadors Condominium features four separate high rise towers connected by a base lobby. The condominium contains 742 units. The buildings were converted from non-condominium commercial use to the condominium form of ownership in 1982. Each floor of the 4 buildings contains a community commercial washing facility available for use by the owners residing on that particular floor; the plumbing system used by these community facilities is separate from the systems used in the individual apartments. The declaration does not contain a provision specifically prohibiting owners from installing washers and dryers in their units. At the final hearing, the arbitrator ruled as a preliminary matter that the association could not lawfully seek to apply the rules, adopted in 1999, to respondent s washer and dryer that were installed in 1988 in unit 1125. 1 Section 16.7 of the declaration provides in part as follows: 16.7 No Improper Uses No Improper, offensive, hazardous or unlawful use shall be made of the Condominium Property or any party thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed 1 Section 9.1 of the declaration provides in part: No Unit Owner shall make any addition, alteration or improvement in or to the Common Elements or any Limited The association did not discover the laundry equipment until approximately 1997 and has been working with respondent since then to obtain removal of the machines. Moreover, respondent is a seasonal resident and only occupies the unit on limited occasions. Hence, the arbitrator on this basis rejects respondent s laches defense. 2
Common Element, without the prior written consent of the Board of Directors; and without the prior written consent of the Board, no Unit Owner shall make any addition, alteration or improvement to his Unit that would or might (in the Board of Director s judgment): (a) interfere with any other Unit Owner s use and enjoyment of his Condominium Parcel; (b) impair the Building s structural soundness; (c) affect the Common Elements, (d) change the Building s exterior appearance or (e) violate any applicable law or ordinance. The Board shall have the obligation to answer any written request by a Unit Owner for approval of such an addition, alteration or improvement in such Unit Owner s Unit or Limited Common Elements within thirty days after such request.[e.a.] Section 16.4 of the declaration provides in part: 16.4 Alterations Without limiting the generality of section 9.1 hereof, no Unit Owner shall cause or allow improvements or changes to any Limit Common Elements or Common Elements (including, but not limited to, painting or other decorating of any nature, installing any electrical wiring, television antenna, machinery or air conditioning units or in any manner changing the appearance of any portion of the Building) without obtaining the prior written consent of the Association in the manner specified in Section 9.1. Section 16.5 of the declaration states: 16.5 Use of Common Elements; Guests. The Common Elements shall be used only for furnishing of the services and facilities for which they are reasonably suited and which are incident to the use and occupancy of Units The association has an enforcement history with reference to the problems caused by washers and dryer in the units. According to its experience, sooner or later, the soap and debris produced by a washer that is released into the kitchen sink 3
waste line pipe, over time becomes congested much in the same manner as an artery becomes blocked by improper nutritional intake. In addition, because the plumbing system connecting the sinks and bathrooms (the waste stacks) are not built to accommodate washers in the individual units, the extra water and soap discharge inevitably leads to backups of these materials in other than the host units. In these episodes, the soapy water and suds that are flushed out of the unit containing the laundry equipment re-appear in contiguous units by bubbling up through their kitchen sinks and bathroom plumbing access points. The soap discharges often accumulate and are retained in the waste pipes, and move throughout the stack as air bubbles when the water discharge seeks to push beyond the soap bubbles. The suds can effectively prevent the waste water from discharging through the pipes, causing a backup. As the plumbing system ages (here, the buildings were built in 1967-8), particulate matter accumulates in the pipes, thereby accentuating the backup problem. When the association has in the past discovered suds in a unit, in order to address the problem, it has searched contiguous units for the presence of a washer and dryer and asked the owner to remove them. Owners other than the respondent have been responsive to the association s request for removal of the equipment. When a unit is sold, the association inspects the unit and requires the new owner to agree to remove any laundry equipment before the unit is re-occupied. Unit #323, owned by Mr. Mendez, who testified in this action, has been the recipient of invasions of suds and soapy water and laundry debris since 1992 when he purchased the unit, and has had suds backup in his unit within the past several 4
months. Three to five times a year the unit has flooded with these materials, and each time Mr. Mendez, at his own expense, has repaired the damage himself with no contribution from the association. The water and materials overflow from the bathroom and kitchen and flood the hallway, undermine the carpet, and invade his closets. The association discovered that the respondent s unit contained laundry equipment in 1997, and has since that time been trying to persuade the respondent to remove the machines. However, at trial the association did not prove and did not attempt to prove that the origin of Mr. Mendez s soap problems was with respondent s washing machine. Unit 924 also had a washing machine for a time and it is possible that this was causing problems with Mr. Mendez s unit. Illicit washers (e.g., unapproved rogue washers) and dryers hooked up to the kitchen drain pipes pose an actual threat to the common elements and to the units and the property contained therein. Without predictability but with eventual certainty, the washers will malfunction, backups into the units will occur, or a hose will rupture which would not, in many cases, be discovered for some time due to the highly seasonal occupancy of the unit owners in this condominium. Water may overflow and saturate a portion of the building that is not discoverable until after extensive damage to the common elements, walls, elevators, and units has already occurred. The association has experienced flooding from washers in the past, and the responsible owner has been held accountable for the damages caused. The buildings, when originally constructed, were not designed to accommodate individual washers and dryers within the units. Although respondent s 5
installation of the equipment does not violate the building code, the addition of the washer and dryer violates section 16.5 of the declaration providing that the common elements shall only be used for the furnishing of services and facilities for which they are reasonably suited and which are incident to the use and occupancy of units. It follows that what activities are incidental to a unit are measured in part by the specifications to which the building was constructed. Here, clothes washing was not intended to be accommodated within the individual units; this use exceeds the intended use of the common element pipes and stacks. In addition, the installation of the washer and changed the common elements or unit within the scope of section 9.1 of the declaration that prohibits changes to the common elements or to the units which interfere with other owner s use or enjoyment of the parcels or that affect the common elements. The arbitrator accepts the submission of the association that washers and dryers eventually and inevitably interfere with other owners use of their units when the plumbing system, not designed to accommodate this use, rebels and expels the extracted substances and soapy discharge. It is often impossible in a large building to trace the culpable machine to one particular unit. The washer and dryer are certainly contributing to the daily degeneration of the common element plumbing system, are contributing cloggable materials including lint, and are discharging soap and bubbles that act to block off the normal operation of the plumbing system in a manner greatly disproportionate to the impact of sinks with soapy dishwater discharge which were designed into the system. 6
WHEREFORE, the respondent shall within 15 days remove the washer and dryer and shall repair and restore the area in question to its prior condition. The association has the right within 30 days hereof to enter and inspect the unit during reasonable times to verify the removal of the equipment and to ensure that the common element connections have been satisfactorily restored. Respondent shall in the future comply with the association rule prohibiting washer and dryers. DONE AND ORDERED this 22nd day of November, 2002, 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 32399-1029 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 22nd day of November, 2002 to the following persons: Laura M. Manning, Esquire Siegfried, Rivera, et al, P.A. 201 Alhambra Circle, Ste. 1102 Coral Gables, Florida 33134 MaryAnne Lukacs, Esquire Lukacs & Lukacs, P.A. 1825 Coral Way Miami, Florida 33145 Karl M. Scheuerman, Arbitrator 7
Right to Appeal As provided by s. 718.1255, 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 order. This order does not constitute final agency action and is not appealable to the district courts of appeal. Attorney's Fees As provided by s. 718.1255, F.S., the prevailing party in an arbitration proceeding is entitled to have the other side pay its reasonable costs and attorney's fees. As provided by rule 61B-45.048, F.A.C., a motion seeking an award of attorney's fees and costs, which motion must conform to the requirements of the administrative rule, must be filed with the Division within 45 days of the date of the entry and mailing of this final order. 8