Clark v. Bluewater Key RV Ownership Park

• Court: Florida District Court of Appeals
• Writing for the Court: SHEPHERD, J.
• Citation: Clark v. Bluewater Key RV Ownership Park, 197 So.3d 59 (Fla. App. 2012)
• Decision Date: 19 December 2012
• Docket Number: No. 3D11–884.,3D11–884.
• Parties: Roland B. CLARK, etc., et al., Appellants, v. BLUEWATER KEY RV OWNERSHIP PARK, etc., Appellee.

197 So.3d 59

Roland B. CLARK, etc., et al., Appellants,

v.BLUEWATER KEY RV OWNERSHIP PARK, etc., Appellee.

No. 3D11–884.

District Court of Appeal of Florida, Third District.

Dec. 19, 2012.

Becker & Poliakoff and Lilliana M. Farinas–Sabogal, Coral Gables, for appellants.

Lewis Brisbois Bisgaard & Smith, and Jeffrey A. Mowers and Cindy J. Mishcon, Fort Lauderdale, for appellee.

Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.

ON MOTION FOR REHEARING

SHEPHERD, J.

We grant the motion for rehearing, withdraw the opinion issued April 11, 2012, and substitute the following opinion.

We affirm the opinion of the trial judge, upon which we cannot improve and therefore adopt en haec verba:

FINAL JUDGMENT

THIS MATTER came before the Court for trial by the Court on November 16—17, 2010, and the Court, having conducted a trial of the issues presented, having taken testimony and received evidence, having weighed the evidence and testimony and having assigned such weight to each piece of evidence and such credibility to each piece of testimony as is appropriate, hereby FINDS and ORDERS as follows:

1. The BLUEWATER KEY RV OWNERSHIP PARK (“PARK”) is composed of 81 individual lots, landscaped with utility services, including water, electric, and cable television, in Monroe County, Florida. The park also contains recreational facilities on commonly owned property, including the pool and clubhouse. The BLUEWATER KEY RV OWNERSHIP PARK PROPERTY OWNERS ASSOCIATION, INC. (“ASSOCIATION”), was formed pursuant to Articles of Incorporation filed with the Florida Department of State on or about August 3, 1989. It is a not-for-profit corporation created under the authority of Chapter 617, Florida Statutes. Consistent therewith, the ASSOCIATION'S Articles of Incorporation contemplate no pecuniary gain or profit to the members, and allow no distribution of income to members, directors or officers. (Articles of Incorporation, Article IV).

2. No full time or permanent residential use of the lots is allowed. Owners may use their own lot, allow them to be used by family or friends, or rent them out.

3. To facilitate short term rentals, the ASSOCIATION created a “rental program,” which is a voluntary program allowing lot owners to rent their lots through the PARK'S “rental program” or they may rent their lots independently, by themselves or with the help of other professional management. The ASSOCIATION'S rental program charges a 15% fee on the rental income for the services provided, which money is deposited into the PROPERTY ASSOCIATION'S bank account. The PROPERTY ASSOCIATION distributes 85% of the rental income to the respective lot owners, and deposits the remaining 15% of rental income into the ASSOCIATION'S operating account from which general expenses are paid. The 85% of revenue that “passes through” from the PROPERTY ASSOCIATION to the respective lot owners is not income or profit to the PROPERTY ASSOCIATION. It is the return of net revenue to the owners of the lots. The ASSOCIATION does not own the lots in question, nor is it a business partner with the owners, and accordingly, the Court finds that the ASSOCIATION simply acts as an agent of the owners in collecting gross revenues, retaining the management fee of 15%, and paying through the net revenue of 85% to the lot owners in question.

4. On April 17, 2007, the PROPERTY ASSOCIATION passed three resolutions, which have been received in evidence by this Court as Plaintiff's Exhibits 1, 2 and 3.

5. Resolution 1 establishes rules and regulations for the rental of lots in the PARK and was grounded in the authority of Article VII, Section 14 of the Declaration of Covenants and Restrictions. Article VII, Section 14 of the Declaration provides:

a. “Leasing: No lot shall be leased or rented by an owner except as provided by the reasonable rules, regulations and procedures promulgated by the ASSOCIATION.”

6. Resolution 1 requires all owners of lots in the PARK who lease/rent or allow use of their lot by a non-owner to pay a special assessment in the nature of a user fee to the ASSOCIATION, and the failure to pay the non-owner user fees result in subjecting the owner of the lot to non-payment remedies, set forth in Article V, Section 8 of the Declaration.

7. Resolution 2 establishes special assessment user fees for the PARK of $11.00 per day for each lot in the PARK leased or used by a non-owner. Lot owners choosing to participate in the PARK'S voluntary rental program have the $11.00 per day special assessment user fee paid from the 15% rental commission that they have agreed to under the rental program. Those choosing not to participate in the rental program must pay the $11.00 per day special assessment user fee independently.

8. Resolution 3 establishes fines and penalties for violation of rules and regulations adopted by the Board.

9. Subsequent to the effective dates of these resolutions, Plaintiffs rented their lots through Plaintiff RITA CLARK, who operates an independent management business, to manage some of the lot rentals in the PARK. These Plaintiffs who have rented through Mrs. CLARK have been invoiced for the special assessment user fees, but have failed to pay those fees, and the total unpaid special assessment user fees owned by the Plaintiff from the inception of the fee to October, 2010, has been calculated by the ASSOCIATION at $75,766.25 in total, and has been broken down as to each Plaintiff as set forth in Paragraph 68 of the Defendant's closing argument. The ASSOCIATION has placed liens on Plaintiffs' properties for the failure to pay.

10. After carefully reviewing the evidence and the applicable law, the Court finds that the Resolutions in question are valid. The Court finds that these Resolutions do not constitute an

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