STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION RIVIERA CONDOMINIUM APARTMENTS, INC., Petitioner, v. Case No ANA MURPHY SAN ROMAN, Respondent. / FINAL ORDER Comes now the undersigned arbitrator and enters this final order as follows: The petitioner filed this petition for arbitration on April 9, 2001, asserting that the pet dog maintained by the respondent constitutes a nuisance and requesting that the dog be removed. A telephonic hearing was held on October 10, Both parties were represented by counsel and presented both testimony and other forms of evidence. Although both parties presented some hearsay evidence, none of the following findings is based on unsupported hearsay 1. The following order is based on the entirety of the record. Paragraph 17(F) of the Declaration provides in pertinent part that " every unit owner shall not permit or suffer anything to be done or kept in his unit which will obstruct or interfere with the rights of other members or annoy them by unreasonable 1 Hearsay evidence, standing alone, is legally insufficient to support a finding of fact. Rule 61B (4)(a), Florida Administrative Code.

2 noises or otherwise; nor shall a member commit or permit any nuisances " The petitioner presented evidence that on one occasion in March 2001, the respondent's husband was seen walking a dog on the common elements and that he did not clean up behind the dog. There was insufficient evidence, however, to establish that the respondent or her husband violated any specific rule or provision of the condominium documents with respect to this incident. The respondent, moreover, presented competent evidence that the dog being walked that day has been removed from the condominium grounds and that the dog at issue in this action has never been walked on the common elements. The respondent is established to be in violation of paragraph 17(F) of the declaration with respect to this complaint. Nancy Handler, president of the association, testified that she became aware of the presence of the respondent's dog in the month of August 2000, specifically on August 12, 13, and 15, a series of afternoons that the witness spent by the pool, and on which she was annoyed by the loud and extended barking of a dog. Witness Mike Patrick was at the pool on the same afternoons and was similarly annoyed by the same noise. It sounded like the same dog "yapping" on each of these afternoons. The respondent however, testified that on at least the first two of these three afternoons she was on vacation in another state and that her dog was boarded in an establishment 15 miles away. She also presented bills and other evidence regarding the boarding. The entirety of the evidence reflects that the respondent's dog was not the one that annoyed the petitioner's witnesses on August 12, 13, and 15, 2000, and the respondent's dog is not in violation of paragraph 17(F) of the declaration with respect to this complaint. The president heard the dog barking intermittently in September and October 2

3 2000, primarily as she walked along the catwalk in front of the respondent's unit and in the Capri Room next door to the respondent's unit. On one occasion in December, she heard barking that appeared to come from the unit next door (on the side opposite the Capri Room) where the respondent's mother lives. The respondent's mother answered her door with a barking dog in her arms and stated that this was the respondent's dog. During January, February, and March 2001, the president heard the respondent's dog barking for up to three minutes at a time. In April 2001, the respondent's dog barked at the president as the president looked through the window of the respondent's back terrace at the dog. The petitioner's witnesses also testified that on May 18, the respondent's dog barked for either ten or 45 minutes while furniture was being moved from the Capri Room to the respondent's back porch to make room for a wedding, and that on May 23 the dog also barked for another period of time while the furniture was being removed from the respondent's back porch. It was not asserted that the barking was considered annoying, frightening, or distressing, or that it lasted for longer than the time that the men moving furniture were actually on the respondent's back porch. The petitioner's witnesses also testified that the dog at times barks when a person walks along the catwalk by the respondent's unit. One witness testified that he passes the unit at least five times per week, and that the dog has barked at him between 6 and 8 times in the past six months. Another witness passes the unit two or three times each week, and has heard the dog bark between seven and ten times. Neither of these persons testified that the bark was disturbing, annoying, frightening, or upsetting. Another witness who passes the unit two to three times per week, and who 3

4 has heard the dog perhaps ten times while passing and a couple of times by the pool, has been irritated by the sound. Shirley Luber, who wrote a letter complaining about the dog at the request of someone in the association's office, was startled the first time she heard the dog bark but does not consider the dog a nuisance. She passes the respondent's unit very frequently, sometimes multiple times daily. She specifically testified that the dog does not affect her quiet enjoyment of her unit. With respect to the evidence that the respondent's dog barks when persons are on the respondent's back porch, looking in the respondent's back window, or on the catwalk immediately outside the unit, it has not been shown that the dog barks to the extent of causing a nuisance and the respondent is not in violation of paragraph 17(F) of the declaration with respect to these complaints. The respondent noted that two of the incidents wherein the dog was described as barking for extended periods occurred when she was home with a newborn baby and no transportation, and that she would never have allowed the dog to bark for ten minutes, much less 45 minutes, with a newborn baby in the house. Another of the occasions was described as occurring the afternoon that the respondent brought her infant home from the hospital. It is significant that no one testified that the respondent's dog could be heard from the inside of another residence. It is also significant that the president testified, in part, "Any dog is a nuisance in apartment living." Finally, it is significant that although the respondent has owned the dog for over three years, most of the petitioner's witnesses only became aware of it within the past six months, after the president initiated action to 4

5 have the dog removed. The petitioner presented testimony that the dog "jumped on" the president once and on Terri Soren once. Neither the initial petition for arbitration, nor the documents filed along with it, nor the answers to the interrogatories propounded in preparation for this hearing included complaints that the dog jumped on anyone. The evidence that the dog is a nuisance on this basis is accordingly stricken. The record has insufficient evidence to establish that the respondent is in violation of paragraph 17(F) of the declaration. ACCORDINGLY IT IS ORDERED: The relief requested by the petitioner, an order requiring the removal of the respondent's dog, is DENIED. DONE AND ORDERED this 12th day of October 2001, at Tallahassee, Leon County, Florida. Therese Pine, Arbitrator, Dept. of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. ATTORNEY S FEES 5

6 As provided by Section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to Stephane Dupont, Esq. at Mark Perlman P.A.,1820 E Hallandale Beach Blvd, Hallandale Beach, FL and to Dawn Marshall, Esq., at Dawn Marshall P.A., 169 E Flagler St. #1431, Miami, FL on this the 12th day of October Therese Pine, Arbitrator 6