STATE OF FLORIDA

1 STATE OF FLORIDA department OF business AND professional REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DAYTONA BEACH CLUB condominium ASSOCIATION, INC., Petitioner, v. Case No. 2007-03-6407 DANIEL MILLER, Respondent. _____/ FINAL ORDER OF DISMISSAL On June 15, 2007, Daytona Beach Club condominium Association, Inc. (the Association) filed a petition for mandatory non-binding arbitration naming Daniel Miller as Respondent.

2 The Association alleges that Respondent is violating section J of Article III of the declaration of condominium by permanently residing in his unit at the condominium . A case management conference was held in the above-styled matter on July 27, 2007, with both parties present. During the conference it became apparent that Daytona Beach Club condominium is a hotel condominium . While the units are owned individually, unit owners are prohibited from permanently residing in the units and the complex is operated as a hotel by a hotel company. Since the undersigned only has jurisdiction over disputes arising in a residential condominium as defined by chapter 718 of the FLORIDA Statutes, the parties were directed to file legal memoranda regarding their positions as to the arbitrator s 1jurisdiction in this matter.

3 Both parties have submitted their arguments which, along with the entire record in this matter, have been considered by the undersigned. The undersigned only has jurisdiction over residential condominiums. Specifically, Rule (8), Fla. Admin. Code, states as follows: No petition shall be accepted for arbitration under these rules unless it arises in a residential cooperative or condominium , as defined by Section or , , and involves a residential unit or units. Therefore, if the instant dispute does not involve a residential condominium , it is not eligible for arbitration.

4 Section (23), FLORIDA Statutes, defines residential condominium as follows: Residential condominium " means a condominium consisting of two or more units, any of which are intended for use as a private temporary or permanent residence, except that a condominium is not a residential condominium if the use for which the units are intended is primarily commercial or industrial and not more than three units are intended to be used for private residence, and are intended to be used as housing for maintenance, managerial, janitorial, or other operational staff of the condominium .

5 With respect to a condominium that is not a timeshare condominium , a residential unit includes a unit intended as a private temporary or permanent residence as well as a unit not intended for commercial or industrial use. With respect to a timeshare condominium , the timeshare instrument as defined in s. (35) shall govern the intended use of each unit in the condominium . If a condominium is a residential condominium but contains units intended to be used for commercial or industrial purposes, then, with respect to those units which are not intended for or used as private residences, the condominium is not a residential condominium .

6 A condominium which contains both commercial and residential units is a mixed-use condominium and is subject to the requirements of s. Clearly, in order for a condominium to be considered a residential condominium it must be intended for us as private temporary or permanent residence. Section J of Article III of the declaration of condominium states the intended use of the units at the Daytona Beach Club condominium : 2 Each unit shall be used only for transient, residential purposes and may not be utilized as a primary or permanent residence. However, the provision is silent as to whether the units are restricted to private use.

7 It is not disputed that the condominium is operated as hotel , providing lodging to the public. In support of his memorandum, Respondent included various photographs of the condominium s grounds. The photographs included the sign outside the building which reads, Daytona Beach Club Ocean Front Inn and has a marquee with messages such as rooms available. Additionally, Respondent has filed a brochure advertising the entire condominium as a hotel , with daily, weekly and monthly rates. Chapter 509 of the FLORIDA Statutes regulates public lodging establishments, including resort condominiums.

8 Section (1)(c), FLORIDA Statutes, defines resort condominium as follows: Resort resort condominium is any unit or group of units in a condominium , cooperative, or timeshare plan which is rented more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented for periods of less than 30 days or 1 calendar month, whichever is less. It is apparent that the condominium in the instant matter is a resort condominium , a type of public lodging establishment. Therefore, it does not fall within the definition of a residential condominium .

9 Accordingly, any dispute arising in the condominium is not eligible for arbitration. Based upon the foregoing, it is ORDERED: Arbitration case number 2007-03-6407 is dismissed due to lack of jurisdiction and the Association may seek relief in a court of competent jurisdiction. 3 DONE AND ORDERED this 19th day of September, 2007, at Tallahassee, Leon County, FLORIDA . _____ James W. Earl, Arbitrator department of business and professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, FLORIDA 32399-1029 Copies furnished to: Chris Draper, Esq.

10 Becker & Poliakoff, 2500 Maitland Center Parkway Suite 209 Maitland, FLORIDA 32751 Daniel Miller 800 North Atlantic Avenue Unit 423 Daytona Beach, FLORIDA 32118 4