STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES
TOM CERNOSIA
and BETSY CERNOSIA,
Petitioners,
v.
Case No. 00-1803
AMBLEWOOD CONDOMINIUM
ASSOCIATION, INC.,
Respondent.
___________________________/
FINAL ORDER
Pursuant to notice, a formal hearing in this case was held on April 25, 2001 in Naples,
Florida. The petitioners are represented by Leigh C. Katzman, Esq., and the respondent is
represented by Steven M. Falk, Esq. Both parties presented the testimo ny of witnesses and tendered
documents into evidence. Both parties filed post-hearing memoranda, with said filings being
completed on May 9, 2001. This final order is entered after consideration of the complete record in
this matter.
STATEMENT OF THE ISSUE
The issue is whether the association has unreasonably withheld approval of the petitioners’
patio enclosure.
DISCUSSION
Tom and Betsy Cernosia (petitioners or unit owners) own a unit in the Amblewood
Condominium, which is a part of the subdivision complex known as Wyndemere. During the first
part of 1999, the Cernosias replaced the screening on the screened porch of their unit. Mr. Cernosia
testified that the screening was worn, the pulls were rusting and rainwater didn’t drain off the floor.
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Instead of replacing only the exist ing screening and frame, however, the Cernosias extended the area
enclosed with screening by approximately three feet. No other changes were made.
Tom Cernosia discussed his intent to replace the existing screen porch wit h Phelps Edwards,
president of the Amblewood Condominium Association, Inc. (respondent or associat ion); however,
Mr. Cernosia never explained that he planned to enlarge the screened area. Soon after the changes to
the patio were completed, Mr. Edwards informed the Cernosias that they were required to submit the
plan to enlarge their screened porch to the Wyndemere Architectural Review Committee
(Wyndemere Homeowners Association, Inc. is the master association for Wyndemere Complex).
Mr. Cernosia testified that a month later, the petitioners received a letter from Mr. Edwards
indicating that the change to the porch was not approved by the Amblewood board of directors (the
Wyndemere ARC had deferred the matter to the Amblewood board), and that a fining committee had
been appointed. A fine of $100 per day for the violation was imposed. The Cernosias immediately
removed the screen addition, paid the $100.00 fine and filed this arbitration petition.
Exhibits to the declaration show that the standard patios in the condominium are 10’ x 14’.
The petitioners, however, have an “alternative patio” which is 10’ x 17’. The alternative patio
arrangement was created by Exhibit DC-6 of the original declaration and Exhibit DC-7 of the Third
Amendment to the declaration. The petitioners’ unit included the “alternative patio,” which is
shown as larger than the standard patio and extends 3 feet beyond the exterior wall of the enclosed
living area of the condominium unit. While the original patio as built by the developer physically
extends 3 feet beyond the exterior wall of the living area, the original screen around the patio area
was installed in the same vertical plane as the exterior wall, leaving 3 feet of the patio outside of the
screened area.
The Cernosias contend that the association has unreasonably withheld approval for the
change because the association has permitted numerous unit owners to convert their porches into
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enclosed spaces, and to install small screened porches at the front entrances of their units.
The arbitrator viewed the property before taking testimony. The condominium consists of
numerous one and two story buildings (each of which contains several units) clustered around a golf
course that serves the Wyndemere complex. The condominium is exceedingly well maintained and
beautifully landscaped. Five of the units have porches with 10’ x 17’ cement pads; the remaining
units have 10’ x 14’ footprints. None of the other 10’ x 17’ pads’ perimeter walls have been
extended out to encompass the entire 17-foot length.
The tour of the condominium confirmed the petitioners’ allegation that many other porches
have been changed into enclosed space: Unit 901—screening was removed, patio was enclosed with
a knee wall, a glass panel door and jalousie windows; Unit 603—screening was removed and an
entire solid wall was replaced with glass; Unit 503—screening was removed and glass walls
installed; Unit 301—screening was removed, patio was enclosed with a raised knee wall, and multipaned square and semicircle windows; Unit 205—screening was removed and entire patio enclosed
with knee wall and multi-paned glass windows; Unit 102—screening was removed and replaced
with sliding glass walls and large overhead rectangular windows were installed; Unit 204—
screening was removed and patio was enclosed with large multi-paned windows, knee walls, and
overhead rectangular and semi-circle windows; and Unit 902—screening removed and multi-paned
windows, door, and two-semicircular windows installed.
The foregoing are all enclosures of the patio area and confined to 10’ x 14’ pad but the
similarities stop there. There are jalousie windows, paned windows, sliding and fixed glass walls.
Some of the frames are wood, painted white, while others are unpainted aluminum.
In addition to these alterations, several units have a screened entry at the front door. As
originally constructed, the front door of the unit is situated in a recessed area. The screening
encloses the recessed area. There are two different styles of screened entries—one style fits under
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the eve of the building and the other, installed on a two story unit, has its own black aluminum roof
and juts out beyond the vertical wall of the building. These were built after the board adopted
specifications and informed owners that they could install a screened addition so long as it was
installed according to the board’s specifications.
President Edwards testified that the board meets informally on ARC requests. The
association board consists of three directors, and Mr. Edwards’ practice is to contact one or more
directors and try to get a consensus on the request. Then he informs the unit owner of the decision.
Typically, the notice is not in writing. Mr. Edwards testified that the basis for denying the
petitioners’ request to enclose the additional 3 feet of their patio was because of the “vertical plane
rule” and, aesthetically, it wasn’t good for the association. He explained that the petitioners’
enclosure is different from the other patio enclosures because the petitioners’ enclosure is 3 feet
outside the vertical plane of the building, while the others don’t “stick out.” He testified that the
Cernosias’ screened extension was a “monstrosity” that “wasn’t pleasing to us.” He stated that the
materials used by the Cernosias weren’t the problem, only that the addition protruded beyond the
wall of the rest of the building. He contends that the front entry enclosures are different because they
are not nearly as visible as that of the Cernosias.
Mr. Edwards testified that he was not aware of any patio enclosures built without board
approval. However, Mr. Cernosia testified that he had reviewed all of the association’s records
relating to modifications of patios in the last 10 years and had found records reflect ing that the board
approved five of the patio enclosures described above, and that there were no records showing
approval of the other four. Mr. Cernosia’s more specific testimony is considered to be more reliable
than Mr. Edwards’ general recollection.
A letter written by Bob L. Lundstrom, president of Lundstrom McDonald Development, Inc.,
the developer of the Amblewood Condominium, was presented by the petitioners. The letter was
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addressed to the arbitrator; therefore, it is presumed that the letter was written specifically for the
arbitration proceeding. The letter states: “It was intended by the developer that the additional 3 feet
of patio area were a part of the unit and could be screened at the owner’s option.”
Where a declaration of condominium is unambiguous, the surrounding circumstances may
not be considered. See Avery Development Corp. v. Village by the Sea Condominium Apartments,
Inc., 567 So. 2d 447 (Fla. 4th DCA 1990). Article 28.1 of the Declaration of Condominium provides
as follows:
Units. Unless the Unit owner(s) shall first submit plans for such
work to the Board, and the Board, by majority vote shall approve and
consent thereto, no alteration of or improvement or addition to a Unit,
or to any Limited Common Element to which the owner has an
exclusive right of use, shall be made, constructed, erected or installed
which shall: …(2) remove, or change the style, pattern, material,
texture or outside color of any door, window, screen, fixture or
equipment in or on an exterior Unit or the building wall … or (5)
otherwise change, modify or alter the exterior of any Unit or building
so that it thereby differs in appearance from any other Unit or portion
of the building.
The declaration clearly requires board approval for the type of change made by the petitioners. The
petitioners argue that because the declaration of condominium makes the entire 10’ x 17’ area a part
of their unit, they should be permitted to use the area as they see fit. This argument runs counter to
the requirements of Article 28.1, above, which prohibits changes to a unit that al ter the appearance of
the building. Therefore, Lundstrom’s letter will not be considered.
The crux of this case is whether the association exercised in a reasonable manner its power to
approve and disapprove of alterations. The power cannot be exercised arbitrarily or unreasonably.
See Young v. Tortoise Island Homeowner’s Association, Inc., 500 So. 2d 381 (Fla. 5th DCA 1987);
Robertson v. Countryside PUD Residential Homeowners Association, Inc., 25 Fla. L. Weekly D243
(Fla. 5th DCA January 21, 2000). In Young, above, the court reversed the trial court’s imposition of
an injunction requiring the homeowners to replace the flat roof of their residence wit h a peaked roof.
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The architect serving on the Architectural Review Board testified that in his judgment flat roofs
were not compatible with the existing development, and that he had the final review as to aesthetics.
He admitted that another architect might find the design acceptable aesthetically. The court noted
that the flat roof prohibition was not a part of the recorded restrictions, or even part of the guidelines
and checklist adopted by the control board, and held that in the absence of some existing pattern or
scheme the board cannot impose its preferences on owners. The court stated:
…the flat roof prohibition can only be justified by the power of the
Board to pass on aesthetics, harmony and balance—admittedly very
personal, and vague concepts…In the absence of an existing pattern
or scheme of type of architecture which puts a prospective purchaser
on notice that only one kind of style will be allowed, either in the
recorded restrictions or de facto from the unified building scheme
built on the subdivision, such a board does not have the power or
discretion to impose only one style over another, based purely on
“aesthetic concepts.”
In Mallory et al. v. Ballantrae Condominium Association Inc., Arb. Case No. 93-0265,
Arbitration Final Order (January 23, 1994), the association rejected the unit owners’ proposal to
install automatic roll-down hurricane shutters on the windows of their units. The arbitrator
acknowledged that the decision was within the board’s discretion, but noted that the exercise of the
board’s discretion is subject to review. He articulated the arbitrator’s task in reviewing the board’s
decision:
In conducting the review, rather than relying on a potentiallysubjective judgement of what proper aesthetics should be, the focal
point must be whether the decision of the board had a rational
basis…the board in this case has failed to demonstrate that its denial
of permission to install roll-down shutters related positively to the
primary factor identified by the board in its decision-making process.
The primary focus of the board in its denial was an identified sense
of aesthetics. While aesthetics and conformity with existing shutters
constitute a legitimate consideration, the board failed to rebut
Petitioners’ proof that the addition of roll-downs would not adversely
affect the project-wide aesthetics or appearance of the condominium.
In the instant case, the petitioners showed that the association has over the years approved a
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wide variety of screened porch enclosures. Those it did not approve, it tolerated. In addition, the
association has approved two types of screened enclosures at the front entryways of several units.
These changes in the original “as-built” appearance of the condominium extend throughout the
complex. The board’s reason for rejecting the petitioners’ request, the “vertical plane rule,” is not a
rule at all, and is broken by each of the front entryway enclosures.
The respondent cites Miami Lakes Civic Association, Inc. v. Encinosa, 699 So. 2d 271 (Fla.
3rd DCA 1997) in support of its contention that the board’s aesthetic discretion may not be
challenged. In Encinosa, the unit owner built a deck on his property abutting a lake. The lower
court denied the association’s request for injunctive relief because the architectural review
committee did not have any criteria or guidelines governing the construction o f decks, thus affording
the committee uncontrolled discretion in its decisions to approve or disapprove a project. While the
appellate court sent the case back with instructions to enter the mandatory injunction sought by the
association, the court noted that the committee’s disapproval of the deck was based on the fact that it
was too large, rather than its style or function. The court noted that Encinosa himself acknowledged
that allowing others to build a deck like his would “change the looks” of the neighborhood. Thus,
there were de facto guidelines in place to put a homeowner on notice of the criteria to be employed
by the review body. In the instant case, there are no such guidelines in the documents or evident
from the property itself.
RELIEF AND REMEDY
Based on the foregoing, it is ORDERED as follows:
1.
The decision of the association board to disapprove the petitioners’ screened patio
enclosure was unreasonable. The petitioners may reinstall the enclosure they previously installed.
2.
The $100.00 fine imposed by the associat ion is invalid. Within 30 days of the date of
this order, the association shall refund to the petitioners the sum of $100.00.
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DONE AND ORDERED this 5th day of July 2001, at Tallahassee, Leon County, Florida.
_________________________________
Patricia A. Draper, Arbitrator
Department of Business and
Professional Regulation
Arbitration Section
1940 North Monroe Street
Tallahassee, Florida 32399-1029
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RIGHT OF APPEAL
In accordance wit h Section 718.1255, Florida Statutes, a part y adversely affected by this final
order may appeal from the order by filing, within 30 days of entry and mailing of the order, a
complaint for trial de novo with a court of competent jurisdiction within the circuit in which the
condominium is located. This order does not constitute final agency action and is not appealable to
the district courts of appeal.
ATTORNEY’S FEES
As provided by Section 718.1255, Florida Statutes, the prevailing party in this proceeding is
entitled to have the other party pay its reasonable costs and attorney’s fees. Rule 61B-45.048,
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-45.048, 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.
CERTIFICATE OF MAILING
I HEREBY CERTIFY that a true and correct copy of the forego ing was mailed by U.S. mail,
postage prepaid, to Leigh C. Katzman, Esq., Katzman & Korr, P.A., 5581 West Oakland Park Blvd.,
Second Floor, Lauderhill, FL 33313 and Michael R. LeMaire, Esq., Sader & LaMai re, P.A., 1901 W.
Cypress Creek Road, Suite 415, Ft. Lauderdale, FL 33309 this the 5th day of July 2001.
_________________________________
Patricia A. Draper, Arbitrator
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