        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

CHARTERHOUSE ASSOCIATES, LTD., INC., As Trustee of the Kenneth
and Gail Browne Trust U/D/T DTD June 7, 2010, KENNETH BROWNE,
                        and GAIL BROWNE,
                            Appellants,

                                        v.

      VALENCIA RESERVE HOMEOWNERS ASSOCIATION, INC.,
                         Appellee.

                                No. 4D17-2640

                             [November 28, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Thomas H. Barkdull III, Judge; L.T. Case No.
502014CA015292.

   Scott Edwards of Scott J. Edwards, P.A., Boca Raton, and Christopher
A. Sadjera of Sajdera Kim, PLLC, Boca Raton, for appellants.

  Ashley Landrum of Vernis & Bowling of Palm Beach, P.A., North Palm
Beach, and Allen E. Rossin of Rossin & Burr, PLLC, West Palm Beach, for
appellee.

KLINGENSMITH, J.

   Is a personal trainer in a fitness center like a “call girl” sitting at a
clubhouse bar? This was the comparison drawn by the trial court when
granting partial summary judgment in favor of a homeowner’s association
against one of its property owners regarding the issue of whether the
personal trainer was an invitee or licensee. For the reasons set forth
below, neither the analogy nor the analysis used by the trial court was
properly applied to the facts presented here. Therefore, we reverse.

  Charterhouse Associates, Ltd., Inc., 1 owns property within the Valencia
Reserve community. It authorized Kenneth and Gail Browne to reside at

1Charterhouse filed the initial notice of appeal as trustee of the Kenneth and Gail
Browne Trust U/D/T DTD June 07, 2010. Collectively, Charterhouse and the
Brownes will be referred to as “appellants.”
the property and assume the ownership rights of Charterhouse, which
included membership within the Valencia Reserve Homeowner’s
Association (“the Association”). The Valencia Reserve community includes
amenities such as a fitness center, which is the Association’s property.
According to the Association’s Declaration, the center is available for the
use of owners, family members, guests, invitees, and tenants.

   On several occasions, the Brownes paid and authorized their friend, a
personal trainer, to accompany them to the fitness center. He was only
present when invited by the Brownes.            Sometime thereafter, the
Association entered into a contract with a third-party vendor, Total Health
Systems (“THS”), to be the exclusive provider of fitness services in the
Association’s fitness center.

   The relevant provisions of the Association’s Declaration are as follows:

       PRIVATE USE: For the term of this Declaration, the
       Association Property (except otherwise specifically provided in
       this Declaration, e.g., the Rural Parkway) is not for the use
       and enjoyment of the public, but is expressly reserved for the
       private use and enjoyment of the Declarant, the Association,
       and the Owners, and their family members, guests, invitees
       and tenants, but only in accordance with this Declaration.

....

       OWNERS’ EASEMENTS OF ENJOYMENT: Every Owner and
       family member, guest, tenant, agent, or invitee of an Owner
       shall, except as may otherwise be provided in this Declaration,
       have a permanent and perpetual, nonexclusive easement for
       ingress and egress over, enjoyment in, and use of Association
       Property within the Property (except as otherwise may be
       provided elsewhere in this Declaration), in common with all
       other Owners, their family members, guests, tenants, agents,
       and invitees, which easement shall be appurtenant to, and
       shall pass with deed and/or title to, each Owner’s Lot. This
       right shall be subject to the following conditions and
       limitations:

....

       C. The right of the association to establish, amend and/or
       abolish from time to time, uniform rules and regulations
       pertaining to the use of the Association Property.

                                     2
(Emphases added). Because of the contract with THS, the Association
enacted a new rule prohibiting private trainers, instructors, physical
therapists, and massage therapists from working in the fitness center. 2

    Appellants filed an action seeking declaratory relief, injunctive relief,
and damages for breach of their rights under the Association’s Declaration.
They alleged that the Association exceeded its powers granted by the
Declaration by excluding the Brownes’ personal trainer from working with
them at the fitness center via its newly enacted rule. 3 The Association
moved for partial summary judgment, and argued that the trainer was a
licensee who could be excluded from the Association’s property based on
the new rule. Appellants opposed the motion, and asserted that their
trainer was an invitee permitted to enter the fitness center according to
the plain wording of the Declaration.

   At the summary judgment hearing, the trial court found in favor of the
Association:

       If [the personal trainer] is getting a dime for training [the
       Brownes], at any time, which you have basically said he is,
       then he is carrying on a business, and you’re going to the
       Fourth DCA if you have a problem with my ruling.

....

       As soon as [the personal trainer] starts getting paid for his
       services is the difference between the girlfriend sitting at the
       clubhouse bar and the call girl. One is getting paid, they’re a
       licensee; the other one is an invitee. Invitees are welcome,
       businesses are not.

Consequently, the trial court entered final partial summary judgment for
the Association, and this appeal followed.

  The standard of review regarding a trial court’s ruling on a motion for
summary judgment is de novo. See Frost v. Regions Bank, 15 So. 3d 905,
906 (Fla. 4th DCA 2009). “When reviewing a ruling on summary judgment,

2 Notably, this rule did not prohibit private swimming instructors from providing
private instruction in the Association’s swimming pool.
3 The trial court action includes other disputes between the parties; however, only

the claims related to the fitness center were at issue in the Association’s Motion
for Partial Summary Judgment.

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an appellate court must examine the record and any supporting affidavits
in the light most favorable to the non-moving party.” Weinstein Design
Grp., Inc. v. Fielder, 884 So. 2d 990, 997 (Fla. 4th DCA 2004) (quoting City
of Lauderhill v. Rhames, 864 So. 2d 432, 434 n.1 (Fla. 4th DCA 2003)).
“Summary judgment cannot be granted unless the pleadings, depositions,
answers to interrogatories, and admissions on file together with affidavits,
if any, conclusively show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
Frost, 15 So. 3d at 906. “[T]he burden is upon the party moving for
summary judgment to show conclusively the complete absence of any
genuine issue of material fact.” Albelo v. S. Bell, 682 So. 2d 1126, 1129
(Fla. 4th DCA 1996). “When a defendant moves for summary judgment,
the court is not called upon to determine whether the plaintiff can actually
prove his cause of action. Rather, the court’s function is solely to
determine whether the record conclusively shows that the claim cannot be
proved as a matter of law.” Jennaro v. Bonita-Fort Myers Corp., 752 So. 2d
82, 83 (Fla. 2d DCA 2000).

Personal Trainer’s Status as an Invitee

   Under the common law, a visitor who enters the private property of
another falls within one of three classifications: a licensee, an invitee, or a
trespasser. See Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972); see also
Nolan v. Roberts, 383 So. 2d 945, 946 (Fla. 4th DCA 1980) (“In the leading
Florida case of Wood v. Camp, 284 So. 2d 691 (Fla. 1973), the Supreme
Court divided plaintiffs in cases of this nature into three categories:
invitees, uninvited licensees and trespassers.”).

   To determine whether one has the status of an invitee, Florida courts
originally applied the “economic benefit test”:

      [T]he general test is whether the injured person, at the time of
      the injury, had present business relations with the owner of
      the premises which would render his presence of mutual aid
      to both, or whether his presence on the premises was for his
      own convenience, or on business with others than the owner
      of the premises. In the absence of some relation which inures
      to the mutual benefit of the two, or to that of the owner, no
      invitation can be implied, and the injured person must be
      regarded as a mere licensee.

McNulty v. Hurley, 97 So. 2d 185, 188 (Fla. 1957) (emphasis in original)
(quoting Cowart v. Meeks, 111 S.W.2d 1105, 1107 (Tex. Comm’n App.
1938)).

                                      4
    Over time, courts began to use the “invitation test” to achieve more
uniform results. See Post, 261 So. 2d at 148-49. In Post, the Florida
Supreme Court receded from McNulty, and stated, “We agree with the
Fourth District Court of Appeal that the Second Restatement of Torts
invitation test, which includes the public invitee as well as the business
invitee is preferable to the exclusive use of the mutual benefit test . . . .”
Post, 261 So. 2d at 148; see also Wood, 284 So. 2d at 693 (noting that the
terms “mutual benefit test” and “economic benefit test” are
interchangeable); Lunney v. Post, 248 So. 2d 504, 506 (Fla. 4th DCA 1971)
(“Florida, too, has recognized the value of the invitation test.”).

   According to the Restatement’s invitation test, “[a]n invitee is either a
public invitee or a business visitor.” Restatement (Second) of Torts § 332
(1965). “A public invitee is a person who is invited to enter or remain on
land as a member of the public for a purpose for which the land is held
open to the public.” Id. “A business visitor is a person who is invited to
enter or remain on land for a purpose directly or indirectly connected with
business dealings with the possessor of the land.” Id.

   In words recently echoed by our court:

      [T]he invitation test bases “invitation” on the fact that the
      occupier by his arrangement of the premises or other conduct
      has led the entrant to believe that the premises were intended
      to be used by visitors for the purpose which this entrant was
      pursuing, and that such use was not only acquiesced in by
      the owner or possessor, but that it was in accordance with the
      intention and design with which the way or place was adopted
      or prepared.

Arp v. Waterway E. Ass’n, Inc., 217 So. 3d 117, 120 (Fla. 4th DCA 2017)
(quoting Smith v. Montgomery Ward & Co., 232 So. 2d 195, 198 (Fla. 4th
DCA 1970)). Invitees also include anyone present on a premises via
express or reasonably implied invitation of the property owners. Wood,
284 So. 2d at 695.

   Nevertheless, the Florida Supreme Court has maintained its limited
definition of licensees in the wake of Wood, Post, and Smith:

      We thereby eliminate the distinction between commercial
      (business or public) visitors and social guests upon the
      premises . . . . In doing so, we continue the category of
      licensees who are [u]ninvited, that is, persons who choose to

                                      5
      come upon the premises solely for their own convenience
      without invitation either expressed or reasonably implied
      under the circumstances.

Wood, 284 So. 2d at 695 (alteration and emphasis added). “An uninvited
licensee is neither an invitee nor a trespasser, but rather, a legal status in
between whose presence is neither sought nor forbidden, but merely
permitted or tolerated by the landowner.” Arp, 217 So. 3d at 121 (quoting
Bishop v. First Nat’l Bank of Fla., 609 So. 2d 722, 725 (Fla. 5th DCA 1992));
see, e.g., Arp, 217 So. 3d at 119 (holding that an individual crossing a
shopping center’s property late at night as a shortcut when the center’s
businesses were closed was nothing more than an uninvited licensee);
Porto v. Carlyle Plaza, 971 So. 2d 940, 941 (Fla. 3d DCA 2007) (finding
that an individual walking a dog across private property and allowing it to
relieve itself classifies such individual as an uninvited licensee); Iber v.
R.P.A. Int’l Corp., 585 So. 2d 367, 368 (Fla. 3d DCA 1991) (concluding that
an individual entering an office building to use building’s private telephone
to call a taxi was an uninvited licensee); Barrio v. City of Miami Beach, 698
So. 2d 1241, 1242 (Fla. 3d DCA 1991) (holding that an individual walking
on a public beach after midnight when the beach was closed to the public
was an uninvited licensee).

   The Association’s Declaration gives its property owners 4 an easement
for ingress and egress, enjoyment in, and use of the fitness center, and
specifically authorizes their guests and invitees to use the premises.5
When a homeowner exercises in the Association’s fitness center and invites
a third party along, whether for companionship or personalized guidance,
they are using the property for a recreational purpose. This remains true
regardless of whether the guest is a friend or a business invitee, because
the activity they are engaging in is virtually the same. The evidence
established that the Brownes expressly invited the trainer to accompany
them into the fitness center, he was only on the premises with the
Brownes, and did not attempt to gain business from other residents. The
trainer never entered or remained in the fitness center solely for his own
convenience at any time without an express or implied invitation from the
Brownes. See Arp, 217 So. 3d at 120; Wood, 284 So. 2d at 695; Post, 261
So. 2d at 148-49; Smith, 232 So. 2d at 198.

4 In this case, Charterhouse, itself, or the Brownes via authorization from
Charterhouse, as noted above.
5 This court cannot ignore the fact that while the trainer’s presence certainly

benefitted the homeowner, it also indirectly benefitted the Association by
facilitating the use of the exercise room by the resident, while also enabling the
safe and proper use of the equipment.

                                        6
   The trial court erred by using the “economic benefit” test when it
concluded that the Brownes’ personal trainer was a licensee. The trial
court incorrectly focused on the fact that the Brownes’ trainer was paid for
his services. Instead, the status of the personal trainer in this scenario is
more akin to the invitee “girlfriend” at a clubhouse (using the trial court’s
analogy), rather than the uninvited licensee “call girl” soliciting her
services to provide a “girlfriend experience” for paying customers.

  As this court stated in Beachwood Villas Condo. v. Poor, 448 So. 2d
1143, 1144 (Fla. 4th DCA 1984):

      Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla.
      4th DCA 1981), suggested that condominium rules falling
      under the generic heading of use restrictions emanate from
      one of two sources: the declaration of condominium or the
      board of directors. Those contained in the declaration “are
      clothed with a very strong presumption of validity . . . . ,” id.
      at 639, because the law requires their full disclosure prior to
      the time of purchase and, thus, the purchaser has adequate
      notice. See Section 718.503(2)(a), Florida Statutes (1983).
      Board rules, on the other hand, are treated differently. When
      a court is called upon to assess the validity of a rule enacted
      by a board of directors, it first determines whether the board
      acted within its scope of authority and, second, whether the
      rule reflects reasoned or arbitrary and capricious decision
      making.

(Emphasis added).

   In Beachwood, this court was tasked with determining the validity of
two rules enacted by a condominium board of directors. 448 So. 2d at
1143. As in this case, there was no suggestion that the rule under
consideration violated the Condominium Act, Section 718, Florida
Statutes (1983), or was otherwise unreasonable, only the scope of the
board’s authority was in question:

      A declaration of condominium is “the condominium’s
      ‘constitution’.” Schmidt v. Sherrill, 442 So. 2d 963, 965 (Fla.
      4th DCA 1984). Often, it contains broad statements of general
      policy with due notice that the board of directors is
      empowered to implement these policies and address day-to-
      day problems in the condominium’s operation through the
      rulemaking process. It would be impossible to list all

                                     7
      restrictive uses in a declaration of condominium. Parking
      regulations, limitations on the use of the swimming pool,
      tennis court and card room—the list is endless and subject to
      constant modification. Therefore, we have formulated the
      appropriate test in this fashion: provided that a board-enacted
      rule does not contravene either an express provision of the
      declaration or a right reasonably inferable therefrom, it will be
      found valid, within the scope of the board’s authority. This
      test, in our view, is fair and functional; it safeguards the rights
      of unit owners and preserves unfettered the concept of
      delegated board management.

Beachwood, 448 So. 2d at 1145 (emphasis added).

    The Association claims they enacted the personal trainer exclusion rule
pursuant to the Declaration’s provision authorizing the Association to
“provide owners with service [and] amenities . . . which will enhance the
quality of life at Valencia Reserve.” Regardless of the rule’s intent, it
ultimately fails by directly conflicting with the Declaration’s provision
granting a property owner’s invitees access to the fitness center. See
Beachwood, 448 So. 2d at 1145. The rule contravenes an express
provision of the Declaration, therefore, the Association exceeded the scope
of its authority by enacting the subject rule. Accordingly, we need not
discuss the reasonableness of the rule. See id. at 1144.

   In sum, the trial court’s errors arose from its failure to apply the proper
test when designating the personal trainer as a licensee. That error was
compounded when the trial court erroneously upheld the validity of the
rule as applied, and failed to consider whether the Association had the
authority to enact the rule at all. Therefore, we reverse the partial
summary judgment entered in favor of the Association, and remand for
further proceedings consistent with this opinion.

   Reversed and remanded.

TAYLOR and KUNTZ, JJ., concur.

                            *         *          *

   Not final until disposition of timely filed motion for rehearing.




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