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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE ADMIRAL OWNERS ASSOCIATION, INC., Petitioner, v. Case No EILLEEN A. DUNLOP, TRUSTEE, Respondent. / THE ADMIRAL OWNERS ASSOCIATION, INC., Petitioner, v. Case No JOHN WALKER and KATHERINE WALKER, Respondents. / FINAL ORDER On April 30, 2007, The Admiral Owners Association, Inc. (the Association) filed a petition for arbitration (arbitration case number ) naming Eileen A. Dunlop, Trustee, as respondent. On the same day the Association filed a petition for arbitration (case number ) naming John Walker and Katherine Walker as respondents 1. By order dated July 18, 2007, these matters were consolidated. 1 On June 8, 2007, in both cases, the Association sought leave to file amended petitions seeking to recover damages from Respondents. By order dated August 22, 2007, the Association s request was denied since it had not provided prearbitration notice as to this claim. 1

2 After the parties were permitted to engage in discovery, aa final hearing was held in this matter on October 26, 2007 during which the parties presented the testimony of witnesses, tendered documents into evidence and cross-examined witnesses. The parties have filed recommended orders and post hearing memoranda. This order is entered after consideration of the complete record in this matter. APPEARANCES For the Association: John M. Siracusa, Esq. Laurel R. Wiley, Esq. Becker & Poliakoff, P.A. 625 North Flagler Drive Seventh Floor West Palm Beach, Florida For Respondents: Thomas Wackeen, Esq. Jason Siegel, Esq S.E. Willoughby Blvd. Stuart, Florida Statement of Issue Whether the Association the provision of the declaration requiring Respondents to install hurricane screening as hurricane protection may be enforced and may Respondents install hurricane shutters on the perimeters of their balconies? Findings of Fact 1. The Admiral Owner s Association, Inc., is the legal entity responsible for the operation The Admiral Condominium. 2. The condominium is located in St. Lucie County, Florida. 3. Respondent Eileen Dunlop, as trustee, owns unit PH 52 at the condominium. Eileen Dunlop and her husband, William Dunlop, reside in the unit. 4. Respondent Walkers own unit PH 51 at the condominium. 2

3 5. The condominium is located on Hutchinson Island, Florida, on the Atlantic Ocean. The building was constructed in the late 1980 s. 6. The condominium contains a total of 118 units, 18 of which are penthouse units. The penthouse units occupy the top three floors of the building. 7. The condominium was severely damaged by Hurricanes Frances and Jeane in The condominium was in the middle of a concrete restoration project at the time which caused many units to be caught without shutters because they had been removed. Only 40 of the units had shutters in place at the time. The first floor, dedicated to common areas, had no protection in place and, therefore, suffered significant damage. Additionally, the north end of the building took the brunt of the damage as the roof blew off this area. 8. The concrete restoration project was engineered by Jenkins and Charland. 9. Respondents own penthouse units. 10. The first floor and penthouse units have a soffit over the balconies. A soffit is similar to a drop down box ceiling consisting of metal supports with a ceiling constructed from sheet rock and wire mesh with a stucco finish. It is not a structural area, but used for decorative purposes and to conceal items such as air ducts, plumbing and wiring. 11. Respondents units prior to the concrete restoration project had hurricane shutters installed on the outer edge of the balcony, anchored at the top to the soffit. 12. The soffits on the north end of the building were damaged storms. 13. As result of the concrete restoration project, the Association was required to replace the hurricane shutters on the building with code compliant shutters. Therefore, the Association contacted 14 or 15 shutter companies requesting that they install 3

4 shutters on the perimeters of the penthouse balconies. All the shutter companies refused to install shutters secured to the soffit unless the Association waived any responsibility. Shutter company engineers concluded that the soffits would not support the shutters during a storm. 14. Jenkins & Charland proposed reinforcing the soffits and offered two different designs. However, the company was not contracted to perform an analysis of the capability of the existing soffits. 15. Therefore, the Association sought bids for the project. The cost was $500,00.00 to reinforce all the penthouse soffits, exclusive of project management and the first floor soffits which were not included in the bid. 16. Structural modification of the soffits could not have been completed prior to the 2005 hurricane season. 17. Reinforcement of the soffits would have changed the outside appearance the building by adding additional columns mounted on the outside of the existing columns. 18. The Association also considered hurricane impact glass for the penthouse units. However, the cost would have been approximately $40, to $50, per unit. 19. Money was clearly a factor in the board s decision. At the time, it had not recovered insurance money from its property insurer for hurricane damage. The Association had to eventually sue its insurer to recover funds. Therefore, in the meantime, repairs had to be funded by significant assessments. 20. When the Association determined that neither hurricane shutters nor impact glass would be acceptable, it started to look for alternative hurricane protection. A hurricane shutter vendor suggested Armor Screens. 4

5 21. Armor Screens consist of a very strong flexible membrane strung across an opening to protect windows and secured to a structural component of the building on the ends. Armor screens have been accepted by Miami-Dade County, a high velocity hurricane zone, which requires the most stringent protection under the State Building Code. 22. All the members of the Board visited the Armor Screen factory in Riviera Beach, Florida to learn about the product. 23. Walt Young, a member of the Board, called 10 to 12 people who used Armor Screens. 24. Over two and half year period, the Association s board of directors held nine meetings regarding hurricane shutters and protection alternatives. 25. Eventually the Board ordered Armor Screens for the common area first floor. 26. By letter date April 2, 2005, addressed to the Penthouse Owners, the Board stated that it had approved the Armor Screen system as the standard hurricane protection for the penthouses. The letter to penthouse owners explains that the board has not resolved the issue of storage of the screens when they are not deployed. It also states, However, if desired, penthouse owners may collectively install the superstructure required to support the shutters, but against the building at their expense. The letter also indicates that it would take about 16 weeks to complete the reinforcement and an additional 25 weeks to install shutters. This was April 2005, which would have covered the 2005 hurricane season. The cost the improvement was estimated to be $20,000 per unit plus the cost of shutters. 5

6 27. When hurricane Wilma struck the building in October 2005, Armor Screens were installed on the first floor. A window in the northwest corner blew out. The maintenance crew had failed to properly install the Armor Screen for the window. Additionally, a large section of the ceiling area of the soffit in the atrium area behind the entrance to the building failed. The entrance was protected by an Armor Screen. The remainder of the first floor was undamaged. Most of the penthouse units had Armor Screens installed and along with shutters or plywood. Some of the units suffered water intrusion. 28. After Hurricane Wilma, the Association did not seek to reinforce the soffits on the building. 29. On March 24, 2006, the membership of the Association voted to amend its section 8.5 of the declaration of condominium in order to require the penthouse units to install hurricane screens. The section was amended to read as follows: Hurricane Protection. Each unit shall have hurricane protection at all exterior apertures made of glass, in whole or in part, for the protection of the Condominium and Association property, including, but not limited to, the units and common elements. Hurricane protectin shall include hurricane shutters, hurricane screens, hurricane resistant glass or any saint Lucie Approved products, consistent with the guidelines set forth below and such additional guidelines as may be made and amended from time to time by the Board of Directors consistent with these provisions. Should any unit owner fail to install such hurricane protection, then the Association is hereby authorized to proceed with the installation and charge the unit owner for the cost of the hurricane protection and their installation ( Installation Cost ). Hurricane resistant glass meet Saint Lucie County standards in effect at the time of installation or such stricter standards as the Board of Directors may promulgate and amend from time to time. Hurricane resistant glass shall also be subject to such aesthetic guidelines as to type, color and appearance as the Board may make and amend from time to time. Any owner electing to install hurricane resistant glass in lieu of hurricane shutters shall be subject to such additional rules as the Board of Directors may make and amend 6

7 from time to time regarding safeguarding the property in the event of adverse weather. All replacements of existing hurricane shutters must also meets Saint Lucie County standards in effect at the time of installation of the replacement shutters or such stricter standards the Board of Directors may promulgate and amend from time to time. Hurricane shutters must be ivory in color and only of the accordion type. Hurricane shutters installed on the east balconies must be installed at the outer perimeter of the balcony and hurricane shutters installed on the west galleries must be installed immediately adjacent to the window wall. All hurricane shutter installations shall be subject to such additional rules as the Board of Directors may make and amend from time to time. The Board may also make and amend rules regarding safeguarding the property in the event of adverse weather, including, but not limited to, the requirements that all furnishings and other personal property located on the balcony be removed an restored within the unit any time the unit is vacant more than three (3) consecutive calendar days. The replacement of all hurricane protection installed on the three (3) penthouse floors shall be with hurricane screens. Hurricane screens shall also be subject to such aesthetic guidelines as to type, color and appearance as the Board may make and amend from time to time. 30. The amendment was recorded April 5, 2006, in the public record of St. Lucie County, Florida. 59 votes were cast with 50 votes in favor of the amendment. Nine penthouse owners voted with six voting in favor the amendment. 31. The penthouse owners have submitted building permits for the installation of Armor Screens. All have been approved. 32. At the time of the hearing, sixteen of the eighteen penthouse units had installed Armor Screens and the County has issued final inspection approval for them. Respondents have not completed installation on their units. 33. Frank Gaidon, President of the Board, testified that the board has permitted, subsequent to the adoption of the hurricane screen requirement, penthouse owners to install hurricane shutters with the condition that the shutters be placed against the 7

8 window walls with the hurricane screen installed on the outer area of the balcony. He indicated that the Association made this compromise because many of the owners wanted to install shutters. The Association concluded this would give them double protection for wind and water. 34. Respondents hired the Folding Shutter Corporation to install their shutters which submitted an application for installation approval to the Association. The application requests approval for installation of an ivory folding shutter at the respondent s unit. It provides no additional details regarding the installation such as the location of the shutter on the balcony. Joseph W. McCarthy, the Association s Treasurer, signed the application approving the request. Mr. McCarthy did not indicate conditions regarding location of the installation of the shutters. 35. Ms. Gaidon testified that after the board granted permission he called the Association s manager, Kathleen Schuster, and asked her to inform Respondents that the shutters must be installed affixed to the window wall, not on the perimeter of the balcony. 36. Kathleen Schuster has is has been the Association s property manager since January She has been a licensed community association manager for twelve years. 37. Ms. Schuster testified that after the amendment passed Respondent John Walker delivered a request from the Folding Shutter Company to her requesting board authorization to install folding shutters. She further indicated that the board granted approval with the provision that the shutters be installed against the window wall with 8

9 the hurricane screen on the outside of the shutters. Ms. Schuster stated that these conditions were communicated to Respondents verbally by her. 38. Respondents shutters were installed on outer edge of the balcony. The shutters are accordion in style and have a rubber lip at the bottom to help reduce water intrusion. 39. The Association has an emergency preparedness committee which has developed procedures for deployment of the Armor Screens and shutters. 40. During hurricane season, if an owner vacates a unit for extended periods, the Association s maintenance crew installs the Armor Screens on the unit. When the owner returns, the crew removes the screens. 41. When a hurricane is imminent, the maintenance crew deploys the screens for all units and areas protected by them. When the storm has passed the crew removes the screen for the occupied units. At the end of hurricane season, they are removed by the maintenance crew and placed in the unit for storage. Each screen is kept in large bag which weighs forty to fifty pounds. 42. The condominium has an onsite maintenance crew. There is no charge for deployment or removal of the Armor Screens. 43. Notice of Acceptance (NOA) is the standard approval by the local code enforcement agency for use as hurricane protection. The NOA indicates the requirements for materials and installation. In the instant case, the Association has relied upon the Miami-Dade NOA for the Armor Screens which is more stringent hurricane zone than the St. Lucie County. Armor Screens have been tested and accepted by the Miami-Dade code product approval process for hurricane winds up to 150 miles per hour. 9

10 44. The Association has not employed an engineer to inspect the installation of the Armor Screens or shutters installed in any of the units. 45. Gerald Zadikoff, engineering expert for the Association, personally examined the inside of the soffit. He testified that the soffits are not designed to handle other structures attached to them as it cannot handle the additional loading. 46. Mr. Zadikoff also examined the Armor Screens deployed in the penthouse area.. He testified that the device is designed to keep flying debris from the hitting and breaching the window. Likewise he indicated that a hurricane shutter is also designed to stop impacts. The negative pressure associated with storm is the same whether shutters of Armor Screens are used. 47. Negative pressure occurs when the wind of the storm flows across the edge of the building resulting in a lower pressure outside the building, sometimes 30% lower than the inside pressure. 48. When the envelope of the building is breached during a storm, the pressure differential penetrates throughout the building. Any breach to the envelope can have devastating results. Positive pressure occurs when the wind blows against the building. 49. During a storm, winds are at higher speeds higher up the building, and therefore, the wind load is greater. Additionally, the wind load is greater on the corners of the building. 50. In accordance with the Florida Building Code, the condominium is subject to the requirement that certain elements of the structure meet a 140 mile per hour wind, three second gust, standard. Walls, doors and shutters have to meet the standard. However, soffits do not have to meet the standard since they are not a structural element. 10

11 51. Using the 140 mile per hour standard, Mr. Zadikoff determined that the wind load at the penthouse level would be approximately 76 pounds of force per square foot. 52. The Armor Screen is attached at multiple points to the building s concrete columns. Mr. Zodikoff concluded that, as installed, based on the surface area of the Armor Screens installed, the amount of force on each screen would be approximately 7,200 to 7,400 for a 140 mile per hour storm. He opined, as installed on the building, the Armor Screen can withstand 18,000 pounds per square foot. 53. Mr. Zadikoff examined the armor screens on the east balcony. He noted that the armor screens do not span the entire balcony, but consist of two screens. However, the shutters installed on the entire width of the balcony and, therefore, would have to sustain roughly double the amount of force each armor screen would. 54. Mr. Zadikoff s examination of the Armor screens on a unit located on the western side of the building revealed that one Armor screen was installed approximately 2.1 feet from a sliding glass door and one was 1.11 feet from a sliding glass door. 55. Based upon his examination of these areas, Mr. Zadikoff concluded that NOA would require screens to be at least two feet from the window for deflection. 56. The NOA for the armor screens requires that the point of deflection for the screen be a minimum distance, measured from the center of the screen to the window. The distance varies, increasing as the size of the screen increases. 57. The screens on the east side of the building are installed at an angle. 58. Mr. Zadikoff testified that when winds hit the hurricane shutters the force is spread to the anchor points at the ends and soffits at the top. 11

12 59. Mr. Zadikoff opined that, as installed, the shutters on the Respondent s units can not withstand 140 mile per hour winds as required by code. 60. Mr. Zadikoff did not examine the additional aluminum bracing and modifications installed in Respondent Walker s soffit. 61. At the time of the hearing, hurricane screens had not been installed on the Dunlop unit. However, the screens are in the unit. 62. Mr. Dunlop testified that the screens would eliminate one-third of the area of the patio requiring him to store his patio furniture in his unit. Therefore, since the screens are in place during hurricane season and make much the balcony unusable, when an owner is not in residence, patio furniture would have to be stored in the unit. 63. Mr. Walker indicated that he wants the hurricane shutters because he feels they provide better protection from water intrusion. The new shutters have a three inch lip on the inside of the bottom track to help prevent water intrusion. 64. Mr. Walker also prefers the shutters because the block the sun and the west side they help to reduce noise from the power plant. Mr. Walker complains that the screens are too difficult to install. Additionally, the screens must be stored in the unit when not deployed. 65. The shutters as installed were approved by Mr. Lastrange, an engineer with the St. Lucie County building department. 66. The Walker s original shutters withstood the hurricane seasons. 67. Mr. Mather testified that he inspected the inside of the Respondents soffits. He performed a thorough inspection the internal structure of the soffits using photographs taking at his direction obtain by using a camera snake which allowed exploration of the 12

13 68. Mr. Mathers found no deterioration of the soffits on the Respondents units as a result of the hurricanes. 69. Mr. Mathers inspected an armor screen installed on the east side of the building. Based upon the NOA, the point of deflection for this screen should be at lease 16 inches away from any windows. The distance as installed is 21 inches. The screen is installed at an angle, with the anchor points for one side attached to cement column recessed relative to the anchor column of the other side, which enables it to meet the installations requirements. 70. Mr. Mathers also inspected a much larger screen installed on the west side of the building. The screen was installed straight across between two pillars without an offset. Mr. Mathers stated that the NOA for this size of screen requires a deflection point of at least 30 inches. However, as installed the deflection point was, at most, 22 inches. Mr. Mathers opined that if this screen was installed at an angle, like the previously described one, it would meet the requirements. However, this would block access to the emergency exit located on the balcony. 71. Mr. Mathers testified that the soffits will hold up to 76 pounds per square foot and the design storm the code requires as they did in Jeane and Wilma. The original designers designed the soffits to hold up the door frames, not just as a drop down ceiling. Therefore, Mr. Mathers opined that the shutters attached to the soffit will withstand the design storm required by the building code. 13

14 72. Shutters are able to stop the pressure of the wind striking the windows, Armor screens do not. However, neither stops changes in atmospheric pressure, such as when the wind blows across the window creating a negative pressure on the outside, sucking the window out. For example, there could be positive pressure on the front of the building and negative on the back. 73. For the sixteen units with Armor Screens installed, the county has issued a permit and final inspection of approval. 74. On August 20, 2007, the St. Lucie County s Fire Marshall s Office inspected penthouse number 53 at the condominium. 75. At the time of inspection, the Armor Screen was deployed at an angle. This configuration blocked access to the exit to the stairwell located on the balcony. 76. The citation issued by the Fire Marshall indicates, Penthouse made to remove screens for emergency egress. 77. Ms. Schuster was present when the fire marshal inspected the Armor Screen deployed on penthouse 53. She indicated that the owner s daughters had returned to residence in the unit without informing the Association. When the daughters found the Armor Screen deployed they contacted the fire marshal. The inspector inquired as to the Association s policy and she informed him that when someone is in residence the screens are removed. 78. Section of the Florida Fire code provides, in pertinent part: The number of means of egress from any balcony, mezzanine, story or portion thereof shall not be less the than two, except under the following conditions: (3) Hurricane Protection Devices. The temporary installation or closure of storm shutters, panels and other approved hurricane protection devices shall be permitted on emergency escape and rescue openings in 14

15 residential occupancies during the threat of storm. Such devices shall not be required to comply with the operation constraints of While such protection is provided, at least, one means of escape from each occupied unit shall be within the first floor of he unit and shall not be located within a garage. Occupants in any part of the unit shall be able to access the means of escape without passing through a lockable door not under their control. Conclusions of Law The Admiral Condominium is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the parties and subject matter of this dispute pursuant to section , Florida Statutes. Respondents, by their ownership of a units at the condominium, are required to comply with all governing condominium documents. Respondents due not argue that the amendment to the declaration was improperly adopted. Rather, assert various defenses as to why the hurricane screen requirement should not be applied. In Woodside Village Condo. Ass n, Inc. v. Jahren, 806 So.2d 452 (Fla. 2002), the Florida Supreme state, referencing section (1)(a), Fla. Statutes, courts have recognized the authority of condominium unit owners to amend the declaration on wide variety of issues. The Court further concluded that unit owners are on notice that when they purchase their units the declaration is subject to change through properly adopted amendements. Id As in Woodside it is not disputed that the amendment requiring hurricane screens was properly amended pursuant to the declaration. Respondents argue that the hurricane screen requirement is arbitrary and unreasonable in its application. Respondents rely upon Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4 th DCA 1981) in which the court found that restrictions in a declaration of condominium will be invalided upon a showing that they are wholly 15

16 arbitrary in their application, in violation of public policy, or they abrogate some fundamental constitutional right. The undersigned is not persuaded by this argument. The testimony presented at the final hearing clearly established that the penthouse owners are differently situated than other floors because the other floors do not have soffits on the balconies. Respondents argue that hurricane screens are an unreasonable alternative to hurricane shutters. The hurricane screens chosen by the Association have been accepted as hurricane protection by Miami-Dade Florida and have been issued building permits by St. Lucie County. Moreover, the Association has implemented a policy of permitting penthouse owners to install hurricane shutters so long as they are anchored adjacent to the window wall, behind the hurricane screens. Respondents argue that on some of the windows it is not possible to correctly install the screens. However, this argument was contradicted by the testimony of the Respondents expert who indicated that the screens can be installed with the proper deflection distance if the screens are installed at an angle. Respondents contend that when installed, the screens block emergency egress from the balcony in violation of the state fire code which requires at least two means of egress. Section of the Florida Fire code provides that the means of egress may be reduced to less than two as the result of the temporary installation of approved hurricane protection devices during the threat of a storm. Respondents have not 16

17 demonstrated that it is impossible to deploy the hurricane screens in compliance with the Fire Code. 2 Respondents contend hurricane screens may be improperly deployed due to human error. This is purely speculative and is a possibility with any hurricane protection system. Based upon the foregoing, Respondents have not established that the application of section 8.5 of the declaration requiring that penthouse units to use hurricane screens is wholly arbitrary in their application, in violation of public policy, or they abrogate some fundamental constitutional right. Therefore, the Association may require the installation of hurricane shutters. Respondents offer that their expert opined that the hurricane shutters as installed will withstand a design storm. Additionally, Respondents note that St. Lucie County has issued a final approval for Respondents installation. As noted above, the membership may amend the declaration. Additionally, the Board of Directors may establish requirements for installation of hurricane shutters. That an alternative installation is possible and its approval by the building department does not abrogate the requirement that a unit owner comply with the requirements of the governing documents or those established by the Board. Respondents argue that the Association acquiesced to installation of the shutters on Walkers unit by signing off on the approval application. The approval application does not state the location of the shutters. The approval must be considered in light of the governing documents which require the installation of hurricane screens on the 2 This order does not address the propriety of the Association s policy of deploying screens during hurricane season when an owner is not in residence and a storm is not threatening. This issue is properly addressed by Fire Marshall. 17

18 penthouse units. The approval of the installation did not waive the requirement of hurricane screens. Thus, any approval of shutters would require that they be installed in such a manner as to also allow for hurricane screens. Additionally, the Association s property manager informed the Respondents that the shutters must be installed against the window wall. Therefore, Respondents conclusion that they could install hurricane shutters in lieu of screens was unreasonable. Based upon the foregoing, it is OREDERED: Within 30 days of the date this order, Respondents shall install hurricane screens on their units as instructed by the Association. Within 60 days of the date this order, Respondents shall remove any hurricane shutters installed on their units contrary to the directions of the Association. 3 Florida. DONE AND ORDERED this 8 th day of April, 2008, at Tallahassee, Leon County, James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida The Association shall permit Respondents to install hurricane shutters against the window wall in same fashion as the Association has approved for other units. 18

19 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order of dismissal has been sent by U.S. Mail to the following persons on this 8 th day of April John M. Siracusa, Esq. Laurel R. Wiley, Esq. Becker & Poliakoff, P.A. 625 North Flagler Drive Seventh Floor West Palm Beach, Florida Thomas Wackeen, Esq. Jason Siegel, Esq S.E. Willoughby Blvd. Stuart, Florida James W. Earl, Arbitrator 19