STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF FLORIDA LAND SALES AND ) CONDOMINIUMS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3134

)

HERMAN AND LILLIAN FELDMAN, ) LOUIS ROUSSO, and ROLENE COHEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on March 6, 1984, by R. L. Caleen, Jr., Hearing Officer, Division of Administrative Hearings, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: David M. Maloney, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Intervenors: Frank J. Bennardo, Esquire

1860 N.W. Second Avenue Boca Raton, Florida 33432

For Respondent: Rod Tennyson, Esquire

325-C Clematis Street

West Palm Beach, Florida 33401 ISSUE

Whether the cutting down of four pine trees, the installation of a concrete pad, and the erection of a satellite receiving dish constitute a material alteration or substantial addition to the common elements of the Pines of Delray condominium.

BACKGROUND

By notice to show cause dated September 9, 1983, petitioner Department of Business Regulation, Division of Florida Land Sales and Condominiums ("Division"), charged the Pines of Delray Association, Inc. ("Association") with violating Section 718.113(2) Florida Statutes, which forbids the material alteration or substantial addition to the common elements of a condominium except in accordance with the declaration. Specifically, the Division alleged that respondent cut down and removed four pine trees, installed a concrete pad, and erected a satellite receiving dish (with a diameter of 16 feet) on the common elements of the Pines of Delray condominium. The Division alleged that

this action constituted a material alteration or substantial addition to the common elements and that, contrary to the declaration, it was done without the prior approval of 75 percent of the unit owners.

The Association disputed the charge and requested a hearing, after which this case was referred to the Division of Administrative Hearings for assignment of a hearing officer.

The parties filed a prehearing stipulation on March 2, 1983. At hearing on March 6, 1984, the Division presented the testimony of William Cavalcante, Otto Mueller, Herman Feldman, Herbert Cohen, Louis Rousso, Harriet Suvalle, Gene Strickland, and Barbara Hall. The Association presented the testimony of Sol Nagorsky, Dennis Chambers, and George Conley. Petitioner's Exhibit Nos. 1-9, Respondent's Exhibit No. 1, and Joint Exhibit Nos. 1-16 were received in evidence. A motion to intervene, filed by Herman and Lillian Feldman, Louis Rousso, and Rolene Cohen, was granted.

The partial transcript of the hearing was filed on March 27, 1984. The parties filed proposed findings of fact by March 21, 1984. Those proposed findings which are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence, or as irrelevant or unnecessary to resolution of the issues presented.

Based on the parties' stipulation and the evidence presented, the following facts are determined:

FINDINGS OF FACT

1. The Division is the administrative agency of this state empowered to ensure that condominium associations comply with the Condominium Act.

   
   

2. The Association is the condominium association which manages and operates 12 separate condominiums known as the Pines of Delray, located in Delary Beach, Florida.

   
   

3. This case involves a structure placed on the common elements of three of those condominiums: The Pines of Delray condominiums 5, 6, and 11. Condominium 5 has 64 units, 6 has 72 units, and 11 has 96 units.

   
   

4. Initially, the 12 condominiums received television under a "Central Television Antenna System Lease" with the Pines of Delray CAT, an agent of the condominium developer. On November 1, 1979, the unit owners of 8 of the 12 condominiums, including condominiums 5, 6 and 11--by vote equal to or in excess of 75 percent of the unit owners in each of the 8 condominiums--voted to cancel or terminate the television system lease pursuant to Section 718.302, Florida Statutes. The leased television equipment was eventually removed by the owner.

   
   

5. On February 1, 1982, the Association entered into a written agreement with A-I Quality TV, Inc. d/b/a Denntronics Cable to provide television service for the 12 condominiums. The agreement was authorized by the Association's board of directors; the unit owners were not given an opportunity to vote on the agreement.

   
   

6. An addendum to the agreement was entered in December, 1982. The addendum authorized Denntronics to install a satellite receiving station or dish at an unspecified location on the property of the 12 condominiums. The addendum

   was authorized by the Association's board of directors, but again, a vote of the unit owners was not taken.

   
   

7. The Board subsequently selected the site for the receiving dish, centrally locating it on common elements of condominiums 5, 6, and 11, between building no. 65 in condominium 6, no. 25 in condominium 5, and nos. 66 and 110 in condominium 11.

   
   

8. On December 24, 1982, Denntronics, with the Board's authorization, entered the premises of the condominiums and cut down four full-grown pine trees on the site to allow construction of a concrete foundation or pad and erection of the satellite dish. The parties stipulate that this cutting of the trees was an alteration of the common elements and that it was not approved by the owners of 75 percent of the condominium units in the affected area. The pertinent declarations of condominiums provide a specific procedure for obtaining approval before altering or improving common elements of the condominium. Article 5.1(b) of each declaration states:

   
   

   5 MAINTENANCE, ALTERATION AND IMPROVEMENT

   Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof shall be as follows:

   .1 Common Elements.

   (b) Alteration and Improvement.

   After the completion of the improvements included in the common elements which are contemplated in this Declaration, there shall be no alteration nor further improvement of common elements without prior approval, in writing, by record owners of 75 per cent of all apartments. The cost of such alteration or improve ment shall be a common expense and so assessed.

   
   

   After removing the trees, Denntronics poured the concrete pad and attached it to the realty. The pad measures 10 feet by 10 feet, has a depth of 18 inches, and is reinforced with no. 5 grade steel bars. The construction of this pad, as with the tree removal, was not approved or voted on by the condominium owners.

   
   

9. Denntronics then anchored the satellite receiving dish to the concrete pad. The dish is approximately 16 feet in diameter, extending 20 to 25 feet in the air. It remains the property of Denntronics since it was only leased to the Association. It is not a fixture since it may be detached and removed from the concrete pad.

   
   

10. The cutting of the trees, the construction of the concrete pad, and the erection of the satellite dish altered the common elements. The condition of the real property was changed and the satellite dish affected nearby residents' view and enjoyment of the park-like green space in which it was placed.

    
    

11. The replacement of the trees with the concrete pad and satellite dish affected the appearance of the surrounding area. A park-like environment of

    grass and pine trees surrounds the condominiums; it was this feature which persuaded some residents to originally purchase condominiums at Pines of Delray. Both the name of the condominium and its accompanying description on the condominium documents, "A Condominium in the Woods" emphasize this aesthetic feature of the condominium. As shown by the photographs in evidence, the reinforced concrete pad with satellite dish is an intruding presence in a park- like, pristine area. It is an incongruous, even imposing structure, 1/ and, in the setting in which it was placed, is aesthetically displeasing. 2/ It has adversely affected some residents' enjoyment of the grassy green space and has disturbed the scenic view which they enjoyed from their windows. Some residents now keep their window shades closed or no longer use the park-like surroundings. One resident was so upset by the sudden placement of the structure that she sold her condominium and moved away. Another nearby resident who purchased his unit, in large part, because of its proximity to the park-like green space, would not have purchased it if the pad and satellite dish had been there.

    
    

12. Denntronics has a franchise application pending before the City of Delray Beach. If it is granted a franchise, Denntronics will remove the pad and satellite dish, and replace it with underground cable. If Denntronics is not granted a franchise, it intends to maintain and operate the satellite dish at least until June 30, 1987, when the agreement with the Association expires and is up for renewal.

    
    

13. If the satellite dish is removed now, however, the Pines of Delray Condominium will not necessarily be without cable television service. Leadership Cable, the only cable T.V. company franchised by the City of Delray Beach, is willing and able to provide cable T.V. reception to the pines of Delray Condominiums.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1983).

    
    

15. Peck Plaza Condominiums v. Division of Florida Land Sales and Condominiums, 371 So.2d 152 (Fla. 1st DCA 1979), which restricts the Division of Land Sales' power to construe condominium documents, does not bar this administrative enforcement action. The declaration of condominium in the instant case is not ambiguous: it simply forbids any alteration or improvement of common elements without first obtaining approval of 75 percent of the condominium unit owners. The removal of the trees, placement of the concrete pad, and erection of the satellite receiving dish were clearly alterations of the common elements. The central issue is whether these alterations by the Association were "material alterations or substantive additions to the common elements." 718.113(2), Fla. Stat. (1983). If so, they were undertaken in violation of Section 718.113(2) since, admittedly, prior approval of the unit owners--as required by the declaration--was not obtained.

    
    

16. In penal proceedings such as this, the prosecuting agency must prove its charges by evidence "indubitably as 'substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

17. In Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971), the court defined "material alterations or additions" as applied to buildings:

    
    

    [It] means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, or use, or appearance.

    
    

    Id. at 687. This definition also provides guidance when deciding whether material alterations were made to the grounds of a condominium. It is concluded that the evidence convincingly demonstrates that the complained of alterations palpably and perceptively changed the form and condition of the affected park- like green space from its original design or existing condition, so as to appreciably affect or influence its function, use, and appearance. Hence, the common elements of the Pines of Delray were "materially altered within the meaning of Section 718.113(2). Since prior approval of 75 percent of the unit owners was not obtained, it follows that the Association--by its acts--violated Section 718.113(2), Florida Statutes (1983).

    
    

18. Although the Division has power to levy a civil penalty of up to

$5,000.00 per offense, none is warranted here. Section 718.501(1)(d) 2 also authorizes the Division to issue cease and desist orders which, among other things, may require an Association to take affirmative action which will carry out the purposes of Chapter 718. Affirmative action by the Association is appropriate and necessary here. The Association should be ordered to cease and desist from further violations of Section 718.113(2); to remove the concrete pad and satellite receiving dish; and to restore the affected green space, as nearly as possible, to its prior condition. Restoration should include the placing and maintenance of grass sod and no less than four healthy trees, aesthetically pleasing, and not less than 12 feet in height.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Division of Florida Land Sales and Condominiums find the Association guilty of violating Section 718.113(2) and order it to cease and desist from further violations. Further, the order should require the Association to remove the concrete pad and satellite receiving dish within 10 days and restore the affected area, as nearly as possible, to its prior condition. Restoration should include the placing and maintenance of grass sod and at least four healthy trees, aesthetically pleasing and not less than 12 feet in height.

DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida.

R. L. Caleen, Jr. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.

ENDNOTES

1/ The City of Delray Beach concluded that this structure was of sufficient magnitude to require a building permit prior to its installation.

2/ The testimony of residents that the structure was aesthetically unpleasant was corroborated by other evidence. When a city permit to construct the structure was denied by the Community Appearance Board on aesthetic grounds.

The Board's objections were apparently overcome, or disregarded, since the City Council ultimately granted the permit.

COPIES FURNISHED:

David M. Maloney, Esquire 725 South Bronough Street Tallahassee, Florida 32301

Frank J. Bennardo, Esquire 1860 N.W. Second Avenue Boca Raton, Florida 33432

Rod Tennyson, Esquire 325-C Clematis Street

West Palm Beach, Florida 33401

E. James Kearney, Director Department of Business Regulation Division of Florida Land Sales and

Condominiums

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-003134

Orders for Case No: 83-003134