||Third District Court of Appeal State of
Florida, January Term, A.D. 2008
||July 2, 2008
||COSTA DEL SOL ASSOCIATION, INC.,
STATE OF FLORIDA, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES, APPELLEE.
||An Appeal from the State of Florida,
Department of Business and Professional Regulation. Lower Tribunal Nos.
||Siegfried, Rivera, Lerner, De La Torre &
Sobel and Laura M. Manning-Hudson (West Palm Beach), for appellant.
||Jennifer A. Tschetter (Tallahassee),
Assistant General Counsel, Department of Business and Professional
Regulation, for appellee.
||The opinion of the court was delivered by:
Schwartz, Senior Judge
||Before SHEPHERD and SUAREZ, JJ., and
SCHWARTZ, Senior Judge.
||In a declaratory statement, the Department
of Business and Professional Regulation, Division of Florida Land Sales,
Condominiums, and Mobile Homes, held that items, such as Jacuzzis,
trellises, and elaborate screen enclosures, which were purchased,
installed, may be removed, and are usable only by individual unit owners
are nevertheless "condominium property," which under section
718.111(11), Florida Statutes (2006), X1 must be
insured by the association, merely because they are located on the patio
outside, rather than inside, the individual unit. X2
Of course, we reverse.
||In the total absence of any cognizable legal
basis for the inside-and-outside distinction drawn by the Division, which
would as well apply to a barbeque or even a lounge chair placed on the
patio, it is self-evident that this ruling, that the owner of all the
sticks or incidents of ownership which make up the proverbial bundle of
property rights is not its owner and that something or someone else is,
cannot stand. See Black's Law Dictionary 1252-53 (8th ed. 2004) (defining
"property" as: "The right to possess, use, and enjoy a
determinate thing . . . ; the right of ownership . . . . --Also termed
bundle of rights.").
||What is more, it cannot survive any of the
conceivable standards of review which may apply to our consideration of
the case. It is both a clearly erroneous assessment of the facts, see
Dieguez v. Dep't of Law Enforcement, Crim. Justice Standards &
Training Comm'n, 947 So. 2d 591 (Fla. 3d DCA 2007), review denied, 962 So.
2d 336 (Fla. 2007); Fla. Mun. Power Agency v. Dep't of Revenue, 764 So. 2d
914 (Fla. 1st DCA 2000), approved, 789 So. 2d 320 (Fla. 2001), and
entirely contrary to any acceptable interpretation of the statutory
language the administrative agency in question is charged with enforcing.
See City of Coral Gables Code Enforcement Bd. v. Tien, 967 So. 2d 963
(Fla. 3d DCA 2007); Atlantis at Perdido Ass'n, Inc. v. Warner, 932 So. 2d
1206 (Fla. 1st DCA 2006); Arza v. Fla. Elections Comm'n, 907 So. 2d 604
(Fla. 3d DCA 2005).
||In addition, by way of gilding the lily, we
may add that the consequence of the decision below is the utterly unfair
one of making members of the association responsible for insuring property
which they do not and cannot use, and from which they derive no
benefit--indeed, in which they apparently have no insurable interest which
would even permit their maintenance of valid insurance. See § 627.405,
Fla. Stat. (2006); Brockton v. S. Life & Health Ins. Co., 556 So. 2d
1138, 1139 (Fla. 3d DCA 1989); Corat Int'l, Inc. v. Taylor, 462 So. 2d
1186, 1187 n.2 (Fla. 3d DCA 1985), review denied, 471 So. 2d 44 (Fla.
1985). Finally, the ruling is contrary to previous rulings of the Division
itself. See Four Sea Suns Condominium Ass'n, Inc. v. Pariseau, Case no.
00-0559, (Summary Final Order, August 24, 2000, Scheuerman, Arb.) [2000 WL
34475649]; Salamone v. Golden Horn Condominium Ass'n, Inc., Case no.
96-0370, (Summary Final Order, July 17, 1997, Scheuerman, Arb.) [1997 WL
33781686]. See generally Michael J. Gelfand, The Plaza East Trilogy: Not a
Nursery Rhyme, But Scary Warfare, 82 Fla. Bar J., 38 (April 2008). Those
cases, and not the one before us, were correctly decided.
||In sum, it is bad enough to compare apples
and oranges; it is much worse to find that apples are oranges. The ruling
below is Reversed.
Section 718.111(11) provides, in part:
(a) A unit-owner controlled association shall use its best efforts to
obtain and maintain adequate insurance to protect the association, the
association property, the common elements, and the condominium property
required to be insured by the association pursuant to paragraph (b).
(b) Every hazard insurance policy issued or renewed on or after January 1,
2004, to protect the condominium shall provide primary coverage for:
1. All portions of the condominium property located outside the units;
2. The condominium property located inside the units as such property was
initially installed, or replacements thereof of like kind and quality and
in accordance with the original plans and specifications or, if the
original plans and specifications are not available, as they existed at
the time the unit was initially conveyed; and
3. All portions of the condominium property for which the declaration of
condominium requires coverage by the association.
Anything to the contrary notwithstanding, the terms "condominium
property," "building," "improvements,"
"insurable improvements," "common elements,"
"association property," or any other term found in the
declaration of condominium which defines the scope of property or casualty
insurance that a condominium association must obtain shall exclude all
floor, wall, and ceiling coverings, electrical fixtures, appliances, air
conditioner or heating equipment, water heaters, water filters, built-in
cabinets and countertops, and window treatments, including curtains,
drapes, blinds, hardware, and similar window treatment components, or
replacements of any of the foregoing which are located within the
boundaries of a unit and serve only one unit and all air conditioning
compressors that service only an individual unit, whether or not located
within the unit boundaries.
(c) Every hazard insurance policy issued or renewed on or after January 1,
2004, to an individual unit owner shall provide that the coverage afforded
by such policy is excess over the amount recoverable under any other
policy covering the same property. Each insurance policy issued to an
individual unit owner providing such coverage shall be without rights of
subrogation against the condominium association that operates the
condominium in which such unit owner's unit is located. All real or
personal property located within the boundaries of the unit owner's unit
which is excluded from the coverage to be provided by the association as
set forth in paragraph (b) shall be insured by the individual unit owner.
The Division also held that similar items which were installed by the
developer and remain fixed to the outside of the condominium structures
are "condominium property." No one challenges that