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 Sabal Pine Condominiums, Inc., Petitioner, v. Case No Gary L. Felling, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: The association filed its petition in this matter on June 29, 1999, seeking entry of a final order requiring respondent to remove his truck from the condominium property. Respondent filed his answer on July 28, In his answer, respondent claimed that the association was selectively enforcing its parking restrictions against him. An order requiring supplemental information was entered on August 2, 1999, which required respondent to list all examples of other trucks being parked on the property. Respondent filed certain supplemental information on August 13, 1999, and the association filed a response on August 23, The state of the record is such that there are no disputed issues of material fact; hence, entry of a summary final order is appropriate. Respondent parks a full size white Ford F150 pickup truck on the property. The truck has an extended cab and the bed of the truck is covered by a removable hard white shell covering. An amendment to article 10.k of the declaration, as recorded in 1995, provides as 1

2 follows: the following: k. Parking (1) Automobile parking spaces shall be used solely and exclusively for that purpose. (2) Trucks of any kind, motorcycles, motorbikes, commercial vans, buses, boats, are not permitted on Sabal Pines property at any time. (3) Exceptions: Family vans, campers, suburbans and visitor-owned Recreational Vehicles and other homes must always park in the unmarked general parking areas east of the buildings. The rules of the association mirror the prohibition against parking of trucks, and add 11.f.Any pick-up truck with a body altered or added on to make it a camper or recreational vehicle will be considered a TRUCK and will not be allowed to park. Respondent claims that the association is not consistently enforcing its parking regulations. Specifically, respondent has offered 2 examples of selective enforcement. First, respondent claims that a Chevrolet Suburban is allowed to park on the property. Secondly, respondent indicated that the board has failed to enforce the truck prohibition against his neighbor s Ford Bronco. The defense of selective enforcement involves the failure of an association to enforce the documents in other instances bearing sufficient similarity to the present case as 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). By way of illustration, in the area of an association s enforcement of parking restrictions, it has been held that where the association enforced its truck prohibition against pickup trucks, but failed to enforce it against Jeeps and Rangers, 2

3 selective enforcement has not been shown to exist due to the differences that were found to exist in these types of vehicles. Lester v. Pine Ridge at Delray Beach Condominium Association, Inc., Arb. Case No , Summary Final Order (October 28, 1994). In Lott v. the Moorings of Pinellas County Condominium Association, Inc., Arb. Case No , Order Dismissing Petition (May 30, 1995), the arbitrator held that selective enforcement was not shown where the association enforced its truck prohibition against pickup trucks, but declined to enforce the restrictions against motorcycles, Broncos, Blazers, and a commercial truck. Considering first the Suburban, it is noteworthy that the declaration appears to allow this type of vehicle to park on the property. The effect of the provision in the documents allowing Suburbans, or providing Suburbans as an exception to the prohibition, is to define truck so as to exclude Suburbans. The documents may properly set forth the enforcement parameters the board intends to follow. See, for example, Green Terrace Condominium Association, Inc. v. Bevan, Arb. Case No , Summary Final Order (July 19, 1993), in which the arbitrator upheld the rule of the association defining the word truck so as to include vans with no perimeter windows or rear seats. The final order found that a truck was a vehicle designed or used for the transportation of goods. The rule was found to be reasonable because the board could have rationally determined that where a van lacks rear seats or side windows, it is not used or designed primarily as a passenger automobile but is used or designed for the transportation of cargo. A Suburban is a vehicle primarily designed for the transportation of persons; it is not designed primarily for the transport of cargo. Therefore, initially, it is concluded that the declaration sets forth a rational distinction between trucks and Suburbans. See, in this regard, Vista Gardens 3

4 Condominium Association, Inc. v. Civale, Arb. Case No , Summary Final Order (August 4, 1995), in which the arbitrator was asked to decide whether a Suburban was a truck for purposes of enforcement of that condominium s parking restrictions. The arbitrator stated: The foregoing cases suggest that a truck is a vehicle designed or used for the transportation of goods. It does not appear that the subject vehicle [a Suburban] is one designed for the transportation of goods. It has non-removable seats, windows around the entire perimeter, no flat bed, or other traditional indicia of truck status. However, as determined in the findings of fact, the vehicle was used regularly in connection with a trade and business for the transportation of goods and debris to and from the job site. As such, use of the vehicle for such purposes renders the vehicle a truck or other commercial vehicle within the prohibition contained in the condominium documents. For our purposes, then, based on these authorities, the declaration may appropriately distinguish between a Suburban and a pickup truck. 1 One vehicle is designed primarily to transport persons and the other is designed to transport cargo. This example of selective enforcement is therefore rejected. Next, respondent claims that since the association permits a Ford Bronco to be parked on the property, the association is unfairly discriminating against him in seeking removal of his pickup truck. Respondent points out that the Bronco is built with a removable top and removable rear seats, although it is not alleged that the owner has ever removed either the seats or the top. Instead, the photos of the Bronco offered by the respondent show the vehicle to resemble in appearance, design, and function the current 1 Based on these differences, even in the absence of a distinction created in the documents, the conclusions reached herein would find application. As it stands, however, since the declaration permits Suburbans, there is no violation insofar as the Suburban is concerned, and therefore of necessity there is no comparable violation for purposes of selective enforcement. 4

5 family of SUV s that replaced the Bronco. The Bronco resembles the Explorer or Expedition to a much higher degree than it resembles an F150 pickup truck. Assuming this unconverted and unmodified Bronco to be more in the nature of an SUV, it has been held that the failure of an association to enforce its truck restriction against SUV s, but to enforce it against pickups, did not constitute selective enforcement. See, Hollingsworth v. Royal Richey Village II Condominium Association, Inc., Arb. Case No , Summary Final Order (August 2, 1994), where the arbitrator upheld the board s decision to enforce the truck restriction against a pickup but not against Jeeps, Explorers, Blazers, and vans, where these vehicles were not adapted to transport cargo: Accordingly, it would be consistent with the association s position if the association enforced the truck parking restriction on Jeeps, vans, Explorers, and Broncos if those vehicles were adapted to carry cargo. While in some circles, these vehicles may well be considered trucks, it is not unreasonable for the association to classify them as a passenger automobile if they are used to carry passengers, as opposed to cargo. See, also, the arbitration decision in Lott v. The Moorings of Pinellas County Condominium Association, Inc., Arb. Case No , where the arbitrator found that Broncos, a Blazer, a Jimmy, and a Suburban to differ from a pickup truck for purposes of demonstrating selective enforcement. In this case, the Bronco as presented configured, without having been adapted or modified to carry cargo by the removal of the top and sides and rear seats, is designed and used as a passenger automobile. The vehicle finds its modern counterpart with the current sports utility vehicles that have become so popular. As such, it differs fundamentally from a full size pickup in terms of function, design, appearance, and use. The Bronco is available for present use, without any needed modification, in the transportation of passengers. The F150 with its full bed, is immediately 5

6 available for the transportation of cargo even without removal of the bed cover. 2 Wherefore, based on the foregoing, the respondent shall, within 30 days of the entry of this final order, permanently remove the Ford F150 from the condominium property and shall in the future comply with section 10.k of the declaration as well as rule 11.f. DONE AND ORDERED this 1st day of November, Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Northwood Centre Arbitration Section 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 1 st day of November, 1998: Guy M. Shir, Esquire, Becker & Poliakoff, P.A., 500 Australian Avenue South, 9 th Floor, West Palm Beach, Florida 33401, and to Gary L. Felling, 2720 S.W. 22 nd Avenue, Unit 1518, Delray Beach, Florida Karl M. Scheuerman, Arbitrator 2 The fact that Mr. Felling s truck has an extended cab and is therefore capable of carrying additional passengers (or cargo) within the cab itself, does not change the fact that the pickup truck, with its bed, is also designed for the transportation of cargo. Compare, Lester v. Pine Ridge at Delray Beach Condominium Association, Inc., Arb. Case No , Summary Final Order (October 28, 1994). 6

7 Right to Appeal This final order may be appealed by filing, within 30 days of the rendition and mailing of this order, a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located. This final order does not constitute final agency action and is not appealable to the district courts of appeal. 7