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

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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 Jerry Paquette, Petitioner, v. Case No Victoria Manor Condominium Association, Inc., Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and issues this final order as follows: Petitioner Paquette filed his petition on November 27, Petitioner desires to park both his automobile and his motorcycle in his single parking space, and the association has threatened to tow his motorcycle. According to the association s answer filed on January 5, 2001, the motorcycle is not a private passenger automobile and is therefore not allowed by the documents. Petitioner also maintains that the association does not evenly enforce the parking restrictions. The relief requested in the petition is a declaration that petitioner is entitled to park both his car and his motorcycle in his space. On January 9, 2001, the association filed a series of photographs of petitioner s motorcycle. Photograph #1 shows the motorcycle on October 21, 1999, parked in the bushes on the common elements. The motorcycle extends over onto the sidewalk perhaps a foot or more. Photograph #2 shows the petitioner s motorcycle occupying the parking space presumably assigned to the petitioner. Photograph 3 shows petitioner s new motorcycle parked in the narrow area between the sidewalk and the parking curb 1

2 adjacent to petitioner s parking space. The primary issue in the case turns on the appropriate meaning to be given the phrase private passenger automobile. Article 5.D. of the declaration provides in part as follows: D. Appurtenances. The ownership of each apartment shall include, and there shall pass with each apartment as appurtenances thereto whether or not separately described, all of the rights, title and interest of an apartment owner in the condominium property which shall include but not be limited to: (.2) Automobile parking space (for a private passenger automobile only) assigned to the apartment and the exclusive right to use the same. Prior arbitration decisions have explored related issues. 1 In Morton Village Condominium Association, Inc. v. Lucas, Arb. Case No , Summary Final Order (June 11, 1999), the arbitrator examined the issue of whether a Dodge Caravan was a conventional passenger automobile. In that case, the declaration permitted automobile parking while the rules adopted by the board restricted parking to conventional automobiles and specifically prohibited vans. The arbitrator concluded that a van designed for the transportation of passengers was a conventional passenger automobile within the meaning of the rule and could be parked on the common elements. The definition of automobile used by the arbitrator was a self-propelled passenger vehicle that usually has four wheels and an internal combustion engine, used for land transport. The American Heritage College Dictionary, Third Edition. Under this definition, a motorcycle would not generally be considered an automobile. 1 The association s point that the declaration only allows one vehicle per space is well taken. Each space, based on the photographs submitted, was intended to accommodate one automobile only, and owners do not become entitled to park more than one vehicle if through judicious use of the space they are able to wedge two vehicles within the perimeter of one space. 2

3 In Bordeaux Village Association No. 1, Inc. v. Black, Arb. Case No , Summary Final Order (August 28, 2000), the arbitrator addressed the question of whether a small pickup truck used primarily to transport persons is an automobile. In that case, the declaration prohibited vehicles larger than a passenger automobile, while the rule sought to be applied by the association prohibited all pickup trucks regardless of size. The arbitrator concluded that the pickup truck was not taller, heavier, longer, or broader than many passenger automobiles and that the rule as applied to the owner was inconsistent with the declaration. The arbitrator also concluded that: Secondly, the definition of the term automobile does not necessarily exclude trucks, especially where as here the declaration does not specifically exclude trucks but excludes other specific types of vehicles. An automobile is defined as a self-propelled passenger vehicle that usually has four wheels and an internal combustion engine, used for land transport. The American Heritage College Dictionary, 3 rd Edition (1993). Where a small pickup is used primarily for personal transportation or for transportation to and from work, and is not used primarily in the trade or business for the transport of goods and materials, the truck is quite arguably an automobile within the above definition. Review also the arbitration case of Lake Tippecanoe Owners Association, Inc. v. Talierco, Arb. Case No , Final Order (April 3, 1996) where the documents permitted conventional passenger automobiles but prohibited the parking of motorcycles. The arbitrator did not find any internal inconsistency in the documents (which would have been present if automobiles included motorcycles) and upheld the association s efforts to remove the motorcycle. Considering the above definition of automobile and the cases discussed above, it is concluded that a motorcycle is not an automobile. Although a motorcycle is designed primarily for the transportation of persons, it does not have 4 wheels and is not an 3

4 automobile. 2 Since it is not an automobile, and since the declaration here only permits the parking of automobiles, the petitioner has not demonstrated an entitlement under the declaration to park his motorcycle on the property. For related reasons, even if the allegations of selective enforcement asserted by petitioner are deemed to be true, petitioner has not stated a valid defense of selective enforcement. The association evidently permits the residents to park trucks and SUV s on the property but prohibits the parking of motorcycles. The petitioner claims that this amounts to selective enforcement. Petitioner has not alleged that other motorcycles are permitted to park on the property. In order to show arbitrary or selective enforcement, it must be shown that the other violations permitted by the board are comparable to the type of violation involved in the instant action. Scarfone v. Culverhouse, 443 So. 2d 122 (Fla. 2 nd DCA 1983). Stated differently, selective enforcement involves the failure of an 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 instant 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). For example, in Mauer v. Summerlin Woods Condominium Association, Inc., Arb. Case No , Final Order (April 7, 1995), the association sought to enforce truck regulations against an owner who had dual rear wheels and exceeded the weight limits for allowable trucks. The arbitrator found that selective enforcement was not proved where the association had failed to enforce other regulations against vans and campers, finding 2 This conclusion is buttressed, as argued by the association, by s (12), F.S. defining a motorcycle as any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground. 4

5 that the violations were not comparable and could not form the basis for a selective enforcement defense. Several other prior arbitration cases have explored the defense of selective enforcement in the area of vehicle and parking violations. In Lester v. Pine Ridge at Delray Beach Condominium Association, Inc., Arb. Case No , Final Order (October 28, 1994), the arbitrator concluded that selective enforcement was not shown where the association enforced the documents prohibiting the parking of trucks against pickup trucks but not against Jeeps and Rangers. In Sabal Pine Condominiums, Inc. v. Felling, Arb. Case No , Summary Final Order (November 1, 1999), the arbitrator considered whether selective enforcement was shown where the documents prohibited trucks, and where the association had failed to enforce the prohibition against Rangers and Suburban. The arbitrator concluded that the Bronco differs fundamentally from a pickup in terms of function, design, appearance, and use, and hence did not find selective enforcement. Finally, in Lott v. The Moorings of Pinellas County Condominium Association, Inc., Arb. Case No , Order Dismissing Petition (May 30, 1995), the arbitrator considered whether selective enforcement existed where the association failed to enforce a prohibition against motorcycles, but sought to enforce a prohibition against trucks, where the documents prohibited the parking of both trucks and motorcycles. The arbitrator stated: Petitioner states that a motorcycle was parked on the condominium property. While this may be a violation of the parking rules of the condominium, parking a motorcycle is clearly not comparable to petitioner s pick-up truck being parked on the property. Petitioner alleges that the association has allowed a commercial vehicle to park on the condominium property. This example is also inapposite; parking a commercial vehicle on the property is not comparable to 5

6 parking a pick-up truck on the property A fourth example cited by petitioner is that the association has allowed a Ford Bronco, Chevrolet Blazer, GMC Jimmy and Chevy Suburban to park on the property. Again, petitioner has failed to allege a violation of the restriction similar enough to his to constitute a bona fide example of selective enforcement. [emphasis added]. Based on these authorities, it is concluded that selective enforcement has not been demonstrated. In conclusion, the board may properly decide that trucks and vans that carry passengers are automobiles within the meaning of the documents, and that motorcycles are not automobiles. The arbitrator also finds that even if trucks and vans are not considered to be automobiles, no selective enforcement has been shown because the violations, assuming they exist and constitute violations, are not comparable violations. A motorcycle is different from a truck or van in terms of appearance, function, size, and accompanying noise level and safety risk. Therefore, the relief requested by the petitioner is denied. The petitioner may not have a motorcycle on the property. DONE AND ORDERED this 12th 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 has been sent by U.S. 6

7 Mail to the following persons on this 12 th day of January, 2001: Jerry Paquette, 708 Victoria Dr., #111, Cape Coral, Florida 33904, and to Michael R. Whitt, Esquire, Becker & Poliakoff, P.A., Bell Tower Drive, Suite 101, Ft. Myers, 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 costs 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. 7