Gelfand & Arpe, P. A.

 

Memorandum To Clients

September 2007

Vol. XVII No. 9

VEHICLES: CITY TRUCK ZONING PROHIBITION IS UNCONSTITUTIONAL

Community associations frequently prohibit parking of certain types of vehicles in their communities for aesthetic reasons. Many restrictions limit parking of trucks and other large vehicles. Communities may now face an uphill battle when seeking to enforce no truck rules because a Florida appellate court recently ruled that a city zoning ordinance prohibiting parking of trucks in a residential area was unconstitutional.

The City of Coral Gables prohibited parking a truck anywhere at any time in a residential area, or on a public street between 7:00 p.m. and 7:00 a.m. In Kuvin v. City of Coral Gables, 32 Fla. L. Weekly D2009b (Fla. 3rd DCA, August 22, 2007), the facts indicated that Kuvin was fined for parking his Ford F-150 overnight in front of his residence. The house did not have a garage.

Anticipating that many owners may seize upon this decision to flout association vehicle restrictions, this Memorandum provides Florida community association directors information to initially address these situations as they may arise. Owners may not realize that there are significant differences between a city enforcing a zoning ordinance and a Florida condominium, cooperative or homeowners= association enforcing a private covenant. A Florida community association usually has greater authority than a city!

In this case, Kuvin alleged that the zoning ordinance was unconstitutional. The trial court granted judgment in favor of the City. The appellate court disagreed, albeit with a stinging dissent. The majority of the court concluded that the City Aunconstitutionally crossed the line into an impermissible interference with the personal rights of its residents@ and reversed the judgment.

The appellate court majority emphatically rejected the argument that the ordinance may be supported on aesthetic grounds. A[T]here is nothing to distinguish Kuvin=s truck or others like it from what some might think are even more aesthetically displeasing cars or, even more plainly, from one of whatever make or model which is in obvious disrepair or just plain dirty,@ the court noted. APerhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.@

As owners latch onto the Kuvin decision in an effort to keep their trucks, it is important for Florida community associations to recall that covenants contained in declarations are usually provided greater authority and leeway than zoning ordinances. Further, Florida community association restrictions are usually are not held to stringent governmental constitutional tests because the associations are private corporations.

The Kuvin decision highlights the perception that a restriction based upon a label is improper. In this day of vehicle manufacturers always changing marketing campaigns and changing vehicle types, some ask what is a truck? Others, just like the appellate court, ask what about vehicles that look worse than a truck?

It is not clear what effect this decision will have on community associations prohibiting certain types of vehicles. Communities are urged to review their restrictions to ensure clarity and fairness. Concerning vehicles in particular, this decision provides impetus to amend restrictions based on labels and to concentrate on criteria such as height, width, length and appearance.

Working with counsel, associations can help protect restrictions from attack and provide a more objective basis for enforcement. Hopefully this will make administration easier, reduce conflicts and preserve budgets!

ATTORNEY=S FEES: JUDGMENT, NO MATTER HOW SMALL, ENTITLES CONTRACTOR TO FEES

What happens if a contractor sues to foreclose a claim of lien for construction, but the association claims that the contractor owes the association money? After deducting money owed to the association, the contractor may be awarded a much smaller amount of money than the contractor sought. Who is the prevailing party when both sides feel vindicated is important because the Awinner@ in a Florida court dispute frequently is entitled to an award of attorney=s fees and court costs.

Recently, a Florida appellate court ruled that a contractor who recovered a judgment on its claim of lien is entitled to attorney=s fees, even if the judgment received is significantly smaller than the amount originally sought. In Gale Industries, Inc. v. Trytek, 32 Fla. L. Weekly D1554 (Fla. 5th DCA, June 22, 2007), the facts indicated that while installing insulation during the construction of a house, the insulation contractor accidently drove staples though electrical wires damaging the owner=s property. The contractor agreed to allow the homeowner=s electrical company to make the repairs. Upon completion of the repairs, the homeowner presented the contractor with a bill for $18,630.

The contractor refused to deduct the damage amount from its bill. Instead, the contractor recorded a claim of lien in the amount of $12,725 for the insulation work and sued to foreclose the claim of lien. The homeowner counterclaimed for the $18,630 cost of the electrical repairs. The only issue to be decided at trial was the value of the electrical repairs. The trial court determined that the homeowner was entitled to repair costs of $11,200, which was deducted against the lien amount of $12,725, leaving a judgment for only $1,525 in favor of the contractor. to repair costs of $11,200, which was deducted against the lien amount of $12,725, leaving a judgment for only $1,525 in favor of the contractor.

Both parties sought attorney=s fees, claiming to be the prevailing party. The trial court found the homeowner to be the prevailing party; thus, the trial court awarded the homeowner attorney=s fees and court costs.

The appellate court pointed out that generally, when a contractor in a construction lien action obtains a judgment, the contractor is entitled to attorney=s fees. This rule applies even if the contractor recovers only a minimal amount. Here, the appellate court opted to follow the rule that mandates an award of attorney=s fees in favor of a contractor if it is successful in recovering a minimal amount in excess of any owner counterclaim. Therefore, the appellate court reversed the judgment of the trial court and ordered judgment in favor of the contractor.

The appellate court realized that this decision is one of great public importance; thus, the Supreme Court of Florida may hear a further appeal. In the interim, this decision is important because it emphasizes that a contractor who sues an association to enforce a claim of lien may be entitled to attorney=s fees even if the association has a counterclaim. A court is likely to find the contractor the prevailing party so long as it recovers something.

FIRM NEWS

The firm=s offices will be closed on Monday, September 3, 2007 in observance of Labor Day.

This information is provided for general information purposes only, may no be relied upon and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general comment of recent legal changes. This information is not legal advice, representation counsel or opinion. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

8 2007 by Gelfand & Arpe, P.A.