Sable Pass Community Association, Inc. v. Robert E. Call, et al.

OCR transcription; preserved printed pages are authoritative

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

SABLE PASS COMMUNITY ASSOCIATION, INC., a Florida not-for-profit
corporation,
Appellant,

Vv.

ROBERT E. CALL and CHRISTINE D. PITSOS-CALL, AS TRUSTESS
TO THE CALL LIVING TRUST DATED JULY 11, 2022,
Appellees.

No. 4D2024-3084
[March 25, 2026]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Ellen Feld, Judge; L.T. Case No. COWE23-003525.

Joseph G. Paggi III of Stevens & Goldwyn, P.A., Plantation, for
appellant.

Erin Pogue Newell of Open Book Appeals, Fort Lauderdale, for
appellees.

PER CURIAM.

Sable Pass Community Association Inc. appeals the circuit court’s
judgment for Robert E. Call and Christine D. Pitsos-Call, as trustees to the
Call Living Trust. The Calls installed a chickee hut on their property.
Simplified, the issue on appeal is whether they were required to obtain the
approval of Sable Pass before installing the structure. Because we
conclude approval was required, we reverse.

In April 2020, the Calls installed a large tiki-style awning or chickee
structure on their lot. The structure runs along the entire back of the
house and extends about ten feet outward from the home. At trial, the
Calls testified that they did not obtain approval from Sable Pass before
installing the structure. They testified that based on their own internet
research they believed approval was not required. They relied on a Florida
Statute that allows Native American tribes to erect chickee huts without
building permits.

Under section 553.73(10)(i), Florida Statutes (2020), a chickee hut is
defined as an open-sided wooden hut having a thatched roof of palm or
palmetto, constructed by the Seminole or Miccosukee Tribe, and contains
no electrical or plumbing equipment. Although the Calls claimed that the
structure was a chickee hut, thus exempt from regulation under section
553.73(10)(i), Mr. Call admitted at trial that the structure incorporates
non-wood materials, specifically electrical wiring.

After the structure was completed, the Calls submitted a retroactive
application for architectural review, which included a letter stating, “what
I did and why I did it without obtaining architectural review in the first
place.” Sable Pass denied the retroactive application.

Sable Pass filed a complaint for injunctive relief, seeking a court order
requiring the Calls to remove the structure. After a bench trial, the circuit
court entered judgment for the Calls. The court found that Sable Pass
failed to present evidence to support the injunction and that it “needed
testimony from the Board” to explain why the unauthorized structure was
denied.

On appeal, Sable Pass first argues section 553.73(10)(i) only exempts a
chickee hut from the Florida Building Code and does not apply to private
deed restrictions. We agree. Section 553.73 merely creates an exemption
from the Florida Building Code. Section 553.73 contains no language
abrogating a private homeowners’ association’s authority. By accepting
the Calls’ defense that this administrative exemption shielded them from
the declaration, the circuit court erroneously expanded a limited permit
exemption into a total bar on private covenant enforcement. Section
553.73 contains no language abrogating a private homeowners’
association’s authority.

Section 553.73(10)(i) states that “[t]he following buildings, structures,
and facilities are exempt from the Florida Building Code as provided by
law. . . (i) Chickees constructed by the Miccosukee Tribe of Indians of
Florida or the Seminole Tribe of Florida.” Jd. And “the term ‘chickee’
means an open-sided wooden hut that has a thatched roof of palm or
palmetto or other traditional materials, and that does not incorporate any
electrical, plumbing, or other nonwood features.” The chickee hut at issue
does not satisfy section 553.73(10)(i)’s requirements. And, even if the
chickee hut did, section 553.73(10)(i)’s plain language applies only as a
Florida Building Code exemption. Section 553.73(10)(i) does not create an
exemption to private deed restrictions.

Next, Sable Pass argues the circuit court erred when it concluded the
association unreasonably denied the Calls’ request for retroactive
permission to build the chickee hut. The circuit court denied Sable Pass’
request for injunctive relief, concluding it “needed testimony from the
Board” to explain why the unauthorized structure was denied. In so doing,
the circuit court improperly shifted the burden to Sable Pass. Once Mr.
Call testified that he failed to obtain approval before building the chickee
hut, Sable Pass was entitled to a strong presumption of validity. The
burden then shifted to the Calls to prove that enforcement was
“unreasonable and arbitrary.” Killearn Acres Homeowners Ass’n, Inc v.
Keever, 595 So. 2d 1019, 1021 (Fla. lst DCA 1992). The Calls failed to
present sufficient evidence, merely testifying they had assumed they were
exempt.

In conclusion, the circuit court’s judgment for the Calls is reversed and
the case remanded for further proceedings.

Reversed and remanded.
KUNTZ, C.J., CONNER and SHAW, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.