Department of Business and Professional Regulation

Henry S. Ludwig vs. Tudor Cay Condominium Association, Inc.

Case No. 2003-06-5896





Henry S. Ludwig and

Lorraine H. Ludwig,


V.                                                                                        Case No. 2003-06-5896

Tudor Cay Condominium

Association, Inc.,





Comes now, the undersigned arbitrator and enters this final order on rehearing as follows:

The arbitrator entered a summary final order in this matter on December 12, 2003.  On December 24, 2003, the association filed a motion for rehearing which, in violation of the rule on rehearing, re-argues each point that the association lost in the main proceeding.  Each party has filed numerous pleadings and communications since that date.  This final order has been amended where appropriate in response to the motion for rehearing.  The original final order is hereby vacated and replaced with this final order on rehearing.


Petitioners filed their petition in this matter on June, 4, 2003.  Petitioners have been fined $1,500.00 for violations of rule 6 providing in part:

No signs, advertisements, posters, circulars, notices or other lettering shall be exhibited, displayed, inscribed, painted, or affixed, in, on, or upon any part of a condominium unit or parked vehicle except commercial vehicles parked in designated areas.  The foregoing includes signs within a unit, which are visible from outside of the unit.


In supposed violation of rule 6, petitioners delivered two newsletters or bulletins to-.many of the resident owners in the condominium by leaving the newsletter in their front doors.  The distribution of the newsletter occurred in the course of an upcoming election and the materials sought to be disseminated by the petitioners include a certain political content.  For example, Bulletin #34, dated November 1, 2002, in addition to urging the owners to vote, states:


All of the members of the present Board have expressed their intent to run for the 2003 Board.  This means that if no new candidates run, we will have the same Board we have now, and we don't want that; do we? Our present Board has the most dismal record of any Board we have ever had .... Not one of our Board Members was elected to the Board.  All got there because only 5 people ran, or they were appointed by the Board to fill a vacancy.  Not one had experience working for Tudor Cay before getting on the Board, except myself.


In Bulletin #35, dated November 16, 2002, petitioners again criticize certain board members and urge the membership to vote for certain other candidates.  The petition for arbitration argues that rule 6 was not intended to prohibit the behavior complained of, and that even if it were so intended, it violates the Constitution of the State of Florida; that the rule is unreasonable, because the board distributes newsletters containing political content with impunity and the rule is applied with an unequal standard: that since 1994, the petitioner as former president has distributed newsletters regardless of the rule; that the rule has never been enforced against another owner for similar activities; and that the petitioner sought to distribute political literature and in fact did distribute such literature as attached to the petition.


With reference to the election conducted in December 2000, Mr. Ludwig alleges that he told the board in advance that a candidate, Mr. xxxx xxxx ex-felon, was not eligible due to his status as a convicted felon; that he told the board in October of 2002 of the candidate's ineligibility; that the board failed to investigate the claim and allowed the individual to appear on the ballot and allowed the individual to become elected and selected as president.  The association ultimately admitted in this proceeding that xxxx was an ex-felon and therefore should not have served on the board.  Mr. xxxx has resigned from the board and the issue of his eligibility is moot.


The petitioner also alleges that the deadline for giving notice of intent to run for the board was November 8, 2002, and that the second notice of election and candidate information sheets were sent to the owners on November 14, 2002; that after these dates, the board distributed new ballots containing the name of Sam Smathers who had not timely submitted his notice of intent to run or candidate information sheet; and that the outer envelopes from the election are no longer available.  The association maintains that Mr. Smathers timely mailed his notice of intent to run via certified mail which was not received in time by the association.  It was unclear from the answer whether the association simply did not retrieve the certified mail within the time prescribed or whether some other fate befell the notice.  The association clarified this issue by fax response received on August 7, 2003.  The post office attempted to deliver the notice on Saturday, November 2, 2002, to the offices of the property manager, but the parcel was unclaimed until several days later, making the notice arguably untimely.


In accordance with section 718.112(2)(d)3., Florida Statutes, any owner desiring to become a candidate for the board must give written notice to the board not less than 40 days before the scheduled election.  It is concluded that candidate Smathers timely complied with this statutory requirement because Smathers placed the material in the mail more than 40 days before the election and because attempted delivery to the association via certified mail occurred prior to 40 days before the election.  The association, while not in actual possession of the materials more than 40 days before the election, was nonetheless in constructive possession of the nomination form.  A holding to the contrary would permit an association to simply not accept certified mail packages from unpopular non-incumbent candidates and thereby prevent their timely nomination.  It is therefore ruled that timely notice was given by Smathers, and that the association correctly accepted his nomination.


With reference to the fining procedure, the petitioner argues that the fine is invalid because the ex-felon was on the board that appointed the fining committee; that notice of the meeting was not posted at least 48 hours in advance; that since an illegal board member voted to accept the fining recommendation of the fining committee, the fine is invalid; and that the board action in approving and adopting the fine was likewise illegal.  The association maintained during the main proceeding that notice of the fining committee meeting was not required to be posted 48 hours in advance.


On rehearing, the association again argues that a committee is not required to post notice of its meetings. Initially, in its motion for rehearing, the association again argued that committees are not subject to the 48 hour posted notice requirements of  the statute, and that the arbitrator has misquoted the statute.  However, in a subsequent pleading, the association modified its position to argue that because the declaration does not require committee meetings to be noticed through posting, committee meetings are not required to have posted notice.


There is no support in the statute for the association's positions and the arbitrator again rejects these arguments.  Section 718.112(2)(c), Florida Statutes, requires a minimum 48 hours notice posted for regular board meetings; this requirement is made applicable to committees as well:

.... Meetings of a committee that does not take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to the provisions of this section, unless those meetings are exempted from this section by the bylaws of the association.


The bylaws in this case do not excuse the board from providing 48 hours advance notice for committee meetings, and hence by operation of statute, the board is required to post notice of any and all committee meetings at least 48 hours in advance.


For the first time in this proceeding, in its motion for rehearing, the association argues that notice was in fact posted 48 hours in advance.  In its answer filed during the main case, the association simply denied that the committee was required to post notice in advance.  In its motion for rehearing, the association has now produced a notice and argues that it was posted 48 hours in advance.  This new factual assertion will not alter the outcome of  the case., but based on this disputed fact, the arbitrator will not conclude that the action taken at the meeting was void on this basis.


Aside from the posted notice issue, section 718.303(3), Florida Statues provides that no fine shall be levied by the association except after giving reasonable notice and an opportunity to be heard.  Reasonable notice in the context of a fine that may be levied in the amount of $1000 per alleged offense means notice actually calculated to apprise the owner of the nature of the proceeding and notice that further provides the owner with an adequate opportunity to prepare a defense.  The mere posting of a notice on the common elements 48 hours in advance fails to achieve either of these requirements.  Posting is a form of de-personalized notice similar to notice by publication in a newspaper that the beneficiary of the notice may or may not actually read; it usually represents a form of notice or service that is not even authorized until all other methods of personal service or personal delivery are shown to be exhausted.  Due process requires that personal notice be utilized where a potentially substantial fine is to be imposed; this means personalized written notice actually delivered to the unit owner within a reasonable time in advance of the hearing. Compare, Pickens v. Summerlin Woods Condominium, Inc., Arb. Case No. 94-0468, Final Order (July 25, 1995), where the arbitrator ruled that written notice of a fine committee meeting sent to the owner's address in Ohio was inadequate notice where the association knew the owner was residing in Florida.


The second aspect of reasonable notice concerns the timing of the notice.  While there may in theory be instances in which 48 hours advance notice of a fining meeting may be adequate, as where a board seeks impose a nominal fine of $10 for an uncontested violation of the documents, 48 hours notice is grossly inadequate notice where thousands of dollars in fines may be imposed and where the violations are vigorously contested as in this case. Compare: Presley v. Venture Out at Panama City Inc., Arb. Case No. 94-0358, Final Order (January 12, 1996) (concluding that one day notice of a fine meeting was insufficient where the administrative rule then in effect required a minimum of 14 days notice for a fine committee meeting).  Here, Mr. Ludwig does not contest that the association provided him with personalized actual notice in writing 14 days in advance of the meeting at which he would be fined, and hence the arbitrator concludes that the association provided reasonable notice of the meeting.  The fact that the address in the letter indicating the location of the meeting was wrong does not warrant a different conclusion where the owner knew the location of the clubhouse. (1.)


As suggested earlier, the petitioners also argue that rule 6 does not prohibit the conduct that they engaged in, and argue that the fine was therefore invalid for this additional reason.  Petitioners also argue that the association is selectively enforcing the rule in that the board enforces the rule against the petitioners while excusing itself from compliance.  The arbitrator agrees with the petitioners on all accounts.  The rule on its face is obviously intended to prohibit commercial advertising on the property.  The petitioners are not alleged to be advertising a business product or service, and the rule simply does not reach their behavior:

No signs, advertisements, posters, circulars, notices or other lettering. shall be exhibited, displayed, inscribed, painted, or affixed, in, on, or upon any part of a condominium unit or parked vehicle except commercial vehicles parked in designated areas.  The foregoing includes signs within a unit, which are, visible from the outside of the unit. [emphasis added].

1.   The fact that Mr. Ludwig actually attended the meeting does not automatically give rise to the conclusion that adequate notice was given, particularly if he had attended the meeting bu protested the lack of adequate notice.  Likewise, the fact that he presented a defense at the meeting would not preclude him from arguing lack of reasonable notice.  To fail to address the merits of the fine would possibly place him in peril if a reviewing tribunal subsequently determine that adequate notice was given.  In any event, to find a waiver of notice in such an instance would operate to nullify the very requirement that the Legislature specifically sought to inject into the fining procedure: that reasonable notice must be given of these meetings.

The language set forth above makes an abundance of sense if viewed as setting forth general prohibition on commercial advertising.  Signs, circulars, advertisements, notices, and actual lettering on a building are most closely associated with commercial ventures and advertising, and the express exception made for commercial vehicles, which is never persuasively addressed by the association, further reinforces the conclusion that the rule was intended to address commercial activity.  In fact, the rule only makes sense if applied in this manner.  If the rule was correctly applied against political newsletters as urged by the association, the exception for commercial vehicles would be applied in such a manner as to permit newsletters to be posted on commercial vehicles and nowhere else on the condominium property, which produces an obviously absurd result.  It is clear that the rule does not reach the conduct complained of here.  For this reason, the fine imposed for the perceived violations of the rule is invalid.


Even assuming that the rule in fact prohibits the posting of newsletters placed in the doors of units, the arbitrator agrees with the petitioners that because the association has permitted itself to place its own newsletters in the doors of the units, selective enforcement been shown.  Selective enforcement involves the failure of an association to enforce the documents in other instances bearing a sufficient similarity to the instant enforcement effort to warrant the conclusion that it is discriminatory, unfair, or unequal to permit the association to enforce the restriction.  Oceanside Plaza Condominium Association, Inc. v. Salussolia, Arb. Case No. 96-0384, Order Striking Certain Defenses (Sept. 4, 1996), Order on Request for

Clarification (October 9, 1996).  It would be patently unfair for the association to engage in the very practice that it views as violative of the rule, while subjecting other owners to substantial penalties for the very same conduct.  Therefore, it, is found that the association has selectively enforced its rules and cannot now enforce the rule against the petitioners.  On rehearing, the association argues in effect that because the association has what it considers a legitimate reason for violating the rule, its own violation should not form the basis for a selective enforcement defense.  Specifically, the association argues that the board members have a fiduciary duty to disseminate information to the membership which justifies its violation of the rule, while the petitioner does not have such a fiduciary relationship:

As to selective enforcement, the Board of Directors has a fiduciary obligation to publish information to the unit owners and to keep them advised as to occurrences and developments within the condominium complex.  Unit owners, including Petitioners, do not share the same obligation ... There must be a difference between the right of the' Condominium Association to provide information to the unit owners and the owner's “right” to litter the community with leaflets.  There must be a difference between rules governing the unit owners and rules which bind the Association.


The arbitrator finds no such difference (2.) in the actions of the owner or the association, and there is no distinction made in the rule in any event.  The, board is free to provide its essential information to the owners by means that do not violate the rule (even assuming the association had correctly interpreted and applied the rule), and hence it may exercise its fiduciary relationship without violating its own rules. The arbitrator again finds that assuming the rule improperly interpreted to proscribe the delivery of campaign materials to the doors of the owners, the association has indeed failed to uniformly enforce the rule by its own


2. As has been said in other circumstances, one man' s trash is another man's treasure.


admission, by violating the very rule that it seeks to impose substantial fines on the petitioners for violating.  The fine is invalid for this reason alone.


On rehearing, the association argues that the arbitrator should not bar the association from prospectively enforcing the rule against the petitioners.  There can be no application of the rule in its present form to the petitioners because the rule was not drafted to prohibit the conduct that the association seeks to prohibit.  If  the association seeks to prohibit the posting or delivery of political material on the doors of the owners, it must go back to the proverbial drawing board and enact a rule that meets with that intent, assuming that it possesses the requisite authority to do so. (3.)

The issue remaining involves whether the board may, pursuant to apparent authority in the documents, prevent the petitioners from voting in association affairs where the petitioner has not paid the fine imposed by the board.  The petition also alleges that the association has prohibited petitioner from running for the board due to the alleged delinquency(4.), and that the petitioner will be locked out of the use of certain recreational facilities for nonpayment of the fine once the lock system is changed (5.) . In its motion for rehearing, the association states that despite the invalid language of the articles of incorporation, petitioners have been permitted

3.  An association, assuming it possesses the requisite authority, has the ability to adopt rules designed to further  the safety,  welfare, and convenience of its members.  See, Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494 (Fla. 4th DCA 2003).  Petitioners have not resented any convincing authority, constitutional or otherwise, that a rule prohibiting the distribution of literature to the doors of the owners would violate any constitutional or statutory entitlement.


 4.  The arbitrator was unable to find any authorizing provision in the documents.  However, the same rationale presented in this order applicable to the issue of whether the association may deny the right to vote for nonpayment of the fine would find equal application to the issue of whether the petitioner may properly be prevented from running for the board.


5.  It does not appear that the lock-out issue is subject to disposition in this proceeding because the petitioner has not yet been locked out.  However, the Division has already decided in another case that since the Condominium Act did not authorize an association to lock an owner out of the common elements for nonpayment of assessments, the association did not possess this authority.

See: Dover House Condominium Association, Inc., vs. Division  of Florida Land Sales and Condominiums, Declaratory Statement No. 85A-267, aff'd per curiam, 506   So. 2d 1045 (Fla. 4th DCA 1987).

to vote and have been permitted to become candidates for the board, and therefore this issue is somehow not ripe.  The articles say what the article say, and petitioners should not be charged with guessing when or if the association will begin enforcing the language of the articles.  If the association agrees, as it appears to do now, that the articles are invalid, the articles should be duly amended.

The association also denies that the association ever asserted that a fine constitutes an assessment.  However, in the letter entitled "FINING LETTER” sent by manager Spivey to the petitioners (Exh. 17 to the petition), manager Spivey opines

that "Fines are considered to be other assessments and are collectible in accordance with the Condominium documents.” Plainly, the association considers that a fine is an assessment.  The articles of the association provide as follows:

Article X --VOTING

                                     Section 1. Each member in good standing shall be entitled to one vote.

Section 3. A member shall be deemed to be in good standing' and 'eligible to vote at any meeting if, and only if, the member shall have fully paid at least two (2) days prior to, the date fixed for the meeting, all assessments made or levied against the unit by the directors or the declaration, together with all interest, costs, attorney's fees, and other expenses and penalties, if any, property, chargeable against the family unit.


The association argues that the articles of incorporation permit the association to deny the right to vote to a member who has failed to pay a fine imposed by the association.  For a number of reasons this argument must fail.  First, it is specious to argue that a 'fine' is an assessment, or that a fine is even contemplated by the  aforestated portion of the articles of incorporation.  The former issue has long since been settled in Florida condominium law (in a manner contrary to the position urged by the association), and the latter issue finds no support whatsoever in the language of the articles.  The articles purport to disenfranchise an owner for his failure to pay an "assessment" and those expenses related to collecting assessments such as attorney's fees, late fees, and interest charges.  A fine imposed on an owner for his violation of a provision of the documents is not an "assessment" within the meaning of this term of art as defined in section 71 8.103(l), Florida Statutes:

(1)            'Assessment' means a share of the funds which are required for the payment of common expenses, which from time to time is assessed against the unit owner.


The term 'common expenses' refers to expenses shared and paid collectively by all the unit owners and are assessed in accordance with the owners’ proportion of ownership in the common elements.  Section 718.115(2), Florida Statutes.  A fine is not assessed against the owners collectively, and is not assessed in accordance with ownership interest; a fine is assessed against an individual owner and is based on the number of violations encountered and the fining inclination of the board, That a fine is not a common expense and is not collectible as a common expense was directly determined, by the court nearly two decades ago. in Elbadramany v. Oceans Seven Condominium Association, Inc,, 461 So. 2d 1 00 1 (Fla. 5th DCA 1984).  Therefore, it cannot be said that a fine constitutes an assessment for common expenses without running afoul of the statute(6.) and the case law.

6.  Section 71 8.303(3), Florida Statutes, specifically provides that 'No fine will become a lien against

  a unit." The lien referenced in this section refers to the association lien for unpaid assessments for common expenses as provided by § 718.116(5)(a), Florida Statutes.

Moreover, from the context and phraseology of the portion of the articles of incorporation set forth above, it is plain that the articles address only assessments and those expenses and penalties related to collecting assessments, and that the articles do not extend this remedy to instances where a fine is not paid.  This is the case because Article X defines an owner in good standing as a member who has paid “all assessments..., together with all interest, costs, attorney's fees and other expenses and penalties...'     It is plain that the latter categories of costs are tied to those costs incurred in the collection of the assessment.


Even assuming that Article X, section 3 of the articles of incorporation

addresses fines, which it does not, it would be unconscionable and perhaps unintended to prohibit an owner from voting where the fine was being duly challenged in an appropriate forum, since the language refers to expenses “properly chargeable” to the unit; it is a court or arbitrator that decides whether an expense is properly charged to a unit, and where the owner is actively challenging the validity of the fine or expense, it has not been finally determined to have been properly charged to the unit. In the interim period between the final appeal and the present, the association should in good conscience permit an owner so situated to cast a vote on association business.


However, even assuming that the articles are really intended to operate in the manner suggested by the association, there is an overriding reason why the articles cannot properly deprive the owner of his right to vote for nonpayment of assessments.  The association fails to acknowledge that a condominium is fundamentally and exclusively a creature of statute.  Under this principle, each aspect of condominium life is determined and controlled by the statute, and it follows of necessity that being a creature of statute, an association or a developer may only exercise those powers and remedies prescribed by the statute.  According to section 718.102, Fla.  Stat. (2002):

718.102     Purposes.-


The purpose of this chapter is:

(1)   To give statutory recognition to the

condominium form of ownership of real property.

(2)   To establish procedures for the creation, sale,

and operation of condominiums.

Every condominium created and existing in this state shall be subject to the provisions of this chapter.


The courts have steadfastly acknowledged and enforced the statutory nature of condominiums in a progression of decisions that has spanned a period of nearly 20 years.  In Suntide Condominium Association, Inc. v. Division of Florida Land Sales and Condominiums, 463 So. 2d 314, 317 (Fla. lst DCA 1984), review denied 469 So. 2d 750 (Fla. 1 985), the court held that a condominium. association is “strictly a creature of statute" and is required to assess for common expenses in the manner provided by statute.  In Towerhouse Condominium, Inc. v. Millman, 475 So. 2d 674 (Fla. 1985), the Florida Supreme Court held that since the statute did not confer the authority on a condominium association to purchase land to be used as additional parking, this authority did not exist:


... Hence, petitioner may exercise only those powers

enumerated in the Condominium Act, which expressly

provides that the association may grant itself in the

                           Declaration of Condominium and bylaws only those

powers not inconsistent with the Act. ....At the time of the

contested purchase, the statute did authorize .the

association to purchase units in the condominium.  Section

718.111(8), Fla.Stat. (1977).  It is a general principle of

statutory construction, well-established in Florida's

     jurisprudence, that the mention of one thing implies the exclusion of another.

     [citation omitted]. This rule of expressio unius est exclusio alterius leads to the

     conclusion that no other power to purchase real property was intended to be

    within the association's authority.  Had the .power to purchase real property

     been inherent in the association, there would have been no necessity for a

     legislative grant of such power. [footnote omitted; emphasis added].


Towerhouse, 475 So. 2d at 676.  Because of the statutory nature of condominiums, it follows that purchasers, developers, and associations may only exercise those powers conferred by statute, and may only exercise that authority in the manner prescribed by statute.  In Palm Bay Towers Corp. v. Brooks, 466 So. 2d 1071 (Fla. 3d DCA 1985), opinion on rehearing en banc, the court held that the developer could not, by artfully drafting the declaration of condominium, excuse itself from the payment of statutorily-set assessments on developer-owned condominium units.  The court stated:

-In our view, the panels' conclusion that the terms of the Declaration of Condominium overrule the obligation imposed by ss. 7_11.14-15, Fla.  Stat. (1971) that the developer-unit owner pay the assessments in question is incorrectly contrary not only to what was both necessarily and explicitly determined in our previous decision, 375 So. 2d 350, but to the general rule concerning the invalidity of a private , agreement which contravenes a governing statute. [citations omitted].  This principle must be given special force in the condominium field in which the legislature has found it necessary to overcome just the sort of purportedly-arms-length, but actually self-dealing-type of “agreement" represented by the provision of the Declaration of Condominium upon which the appellants now rely. [Emphasis added].


Palm Bay Towers Corp., 466 So. 2d at 1074.  See also Hyde Park Condo.  Ass'n. v Estero Island Real Estate, Inc., 486 So. 2d 1 (Fla. 2d DCA 1986) in which the developer also attempted to excuse itself from assessments accruing on developer owned condominium units, theorizing that a 'unit" does not become a unit for assessment purposes until all improvements within the unit are constructed.  The court noted to hold otherwise "would, in effect, create property ownership rights which were not contemplated by either the legislature or the Hyde Park Condominium declaration." Hyde Park, 486 So. 2d at 1. Accord Winkleman v. Toll, 661 So. 2d 102, 107 (Fla. 4th DCA 1995) (noting that a contrary finding--that a “unit" is not a “unit” --would "wreak havoc on the transferability of property in this state"); Estancia Condominium Association v. Sunfield Homes, Inc., 619 So. 2d 1008 (Fla. 2d DCA 1993).(7.)  Finally, review from this perspective, the case of Asbur Arms Development Corporation v. Division of Florida Land Sales and Condominiums, 456 So. 2d 1291 (Fla. 2d DCA 1984), in which the developer who sold condominium units at an auction placed a caveat in an addendum to the purchase agreement providing that the purchaser waived her 15-day statutory right of rescission.  The court, in ruling that the waiver was not permitted by statute or public policy, commented on the statutory nature of condominiums as follows:


The Florida Legislature, through chapter 71.8, Florida Statutes, has mandated procedures for. the creation, sale, and operation of condominiums.  Every condominium created or existing in Florida is governed by the, provisions of chapter, 718.  This chapter, among other things, establishes the rights and obligations as between purchasers and developers of condominiums. In our view, the fifteen-day right to void is designed as a cooling off period to protect the public in general from high pressure condominium sales situations.


Asbury Arms, 456 So. 2d at 1294.  Based on these authorities, the arbitrator concludes that

7.  Counsel for the association should readily recall this case, as both the arbitrator and counsel for the association were of record in the appeal.

since condominiums are creatures of statute, it is the statute that controls the remedies available to associations.  The statute does not provide that the association may disenfranchise an owner for failure to pay a fine or assessment.  Rather, the statute sets forth those remedies that the Legislature intended an association to exercise in this area.  First, the Legislature has conferred on associations a lien for common expenses as provided by section 718.116, Florida Statutes, where an owner has failed to pay assessments.  The lien may be foreclosed in the manner described in the statute.  An association is further authorized by section 71 8.116(4), Florida Statutes, to disapprove a proposed lease of a unit where the owner has not paid assessments.  Beyond that, the Act does not authorize the association to withhold voting privileges from an owner who has not paid assessments.(8.) This conclusion is made stronger by the fact that the right to vote is made an appurtenance to the unit by section 718.106(2)(d), Florida Statutes.  Under section 718.110(4), Florida Statutes, unless otherwise provided in the declaration as originally recorded (this does not include the articles of incorporation), no action of the association may materially diminish the appurtenances to the unit except with unanimous consent of the membership.


Turning to the issue of permissible restrictions, on the right of an owner to run for the board, first, it is not shown that the documents support this exercise of authority.  Secondly, being a creature of statute, it follows as to this issue as well that  an association is not free to fashion whatever punishments and remedies it may conjure up for failure to pay fines or assessments.

8.   Compare, Alan v. Boca Cove Home Condominium Association, Inc., Arb. Case No. 92-0263, Partial Summary Final Order (March 22, 1993), holding that since the Condominium Act did not limit the statutory right of an owner to have access to the official records of the association to instances where the owner is able to demonstrate good cause to view the records, no such limitation exists on the owner's right of access to the official records.

The statute does no qualify the ability of an owner to run for the board, or to remain on the board, on paying regular assessments or fines.  Review, in this regard, San Remo Condominium Association, Inc. v. Unit Owners Voting for Recall, Arb.  Case No. 98-5285, Partial Summary Final Order (December 28, 1998) where the board subject to recall challenged the eligibility of the replacement board members to serve because of an alleged delinquency in the payment of their assessments.  The arbitrator noted:

               Moreover, condominiums are creatures of statute and are thus only permitted to exercise those powers provided by the statute. [citations omitted].  Nowhere does the statute permit an association to deny an owner the right to vote or hold office due to an alleged arrearage in the payment of assessments.  The statute permits the association to file a lien and to refuse to approve a prospective tenant where an arrearage exists ... In addition, the right to vote is specifically made an appurtenance to the unit as described by section 71 8.106, Florida Statutes, and the right to hold office, while not specifically made an appurtenance to membership, is not in the statute conditioned upon the faithful payment of assessments.


The statute presently contains no facial qualifications on the right of an owner to run for the board other than the restriction contained in section 718.112(2)(d)l., Florida Statutes, that addresses convicted felons.  Accordingly any owner may run for the board and may nominate himself to that position.  Section 718.112(2)(d)3., Florida Statutes, permits any owner or other eligible person to provide timely notice of his candidacy.  It follows that if an owner is eligible pursuant to the statute to run for the board, then any unit owner is eligible to continue to sit on the board, once duly elected, regardless of the status of an alleged delinquency in the payment of assessments.


For the foregoing reasons, it is found that the dispute regarding XXXX is moot; that the association properly permitted the nomination of Smathers; that the association complied with the reasonable notice requirements of section 71 8.303, Florida Statutes; that rule 6 does not address or prohibit the conduct complained of by the association; and that even if it did, the association has engaged in selective enforcement of the rule; that the association may not prevent petitioners from voting or from running for the board due to their failure to pay the challenged fines.  The fines are declared invalid for reasons outlined above, and the association shall not attempt to reinstate or collect the fines and shall not again impose a fine on petitioners for conduct found here to fall outside the scope of the rule.  No motion for rehearing of this final order on rehearing shall be filed.


DONE AND ORDERED this 17th day of February, 2004, 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 32399-1029


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 17th day of February, 2004:


Henry S. Ludwig

9221 Tudor Dr., A-202

Tampa, Florida 33615-3780


Steven H . Mezer, Esquire

Bush, Ross, Gardner et al., P.A.

P.O. Box 3913

Tampa, Florida 33602



                                                                                          Karl M. Scheuerman, Arbitrator


                                                 Right to Appeal


As provided by S. 718.1255, F.S., this final order may be appealed by filing a complaint 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.


                                                           Attorneys Fees


As provided by s. 718.1255, 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-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 art costs and attorney's fees.