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 OCEAN RIVIERA ASSOCIATION, INC., Petitioner, v. Case No WILLIAM J. NACY, Respondent. / ORDER STRIKING EXAMPLES OF SELECTIVE ENFORCEMENT AND SETTING PREHEARING PROCEDURES On February 18, 1999, Ocean Riviera Association, Inc., association/petitioner, filed a petition for arbitration naming William J. Nacy, unit owner, as respondent. The petition alleges that the respondent is maintaining several dogs within his unit, in violation of the condominium documents. As relief, the association requests that the respondent be required to remove the dogs from his unit. The respondent filed an answer to the petition on April 7, 1999, in which he admits housing two dogs, but contends that the association is selectively enforcing its no-pet restriction against him. Therefore, the issue is whether the association may require the respondent to remove his two dogs from the unit or whether the association s enforcement action is prohibited by the affirmative defense of selective enforcement. Selective enforcement is established if the facts show that the association is enforcing a restriction against one unit owner while allowing other unit owners to violate the same restriction. The association may not enforce restrictions in a selective or 1

2 arbitrary manner. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (1979). The respondent argues that the presence of the following pets - a parrot in unit 2003, a parrot in unit 1110, two cats in unit 819; two cats in unit 611, a dog in unit 2008, and two dogs in an unidentified unit - and the board s failure to demand their removal under the no-pets restriction entitles him to keep his dogs. To demonstrate selective enforcement the other cited violations must be comparable to the present violation. See Schmidt v. Sherrill, 442 So.2d 963, 966 (Fla. 4th DCA 1983)(removing outside walls and enclosing balconies with permanent sliding glass windows was not comparable to installation of hurricane shutters or placement of detachable cloth sunscreens on other balconies). Previous arbitration decisions have held that there is sufficient dissimilarity between dogs and cats, 1 and dogs and birds, 2 such that a past failure to enforce a pet prohibition against the owners of cats or birds will not prohibit the association from enforcing the pet prohibition against the owner of a dog. Therefore, the examples of selective enforcement involving the birds and cats are STRICKEN. Although the unit owner asserts that one of the other pets in the present case is a screeching parrot, which was the chief cause of complaints by the 1 Forest Villas Condominium Apartments, Inc. v. Michael Malicoat, Arb. Case No , Summary Final Order (July 31, 1997). 2 Board of Trustees of Bel Fontaine v. Joseph Caruso, Arb. Case No , Final Order (September 14, 1994). 2

3 respondent s tenant, the remaining distinctions between dogs and birds continue to exist. These distinctions are substantial and support the previous arbitration decisions. Furthermore, the association has not asserted that Mr. Nacy s pets are nuisances. Thus; whether other alleged pets are creating a nuisance is unrelated to the respondent s defense of selective enforcement. Based upon the status conference held with counsel for both parties and the fact that the respondent has two remaining viable examples of selective enforcement, it appears that some material facts remain in dispute. A fact-finding hearing is, therefore, required and will be held to determine the validity of the remaining examples of selective enforcement. The remaining examples are the now deceased Maltese dog 3 and the pair of dogs in the unidentified unit. This order setting prehearing procedure is entered pursuant to Chapter 61B-45, Florida Administrative Code, as follows: Each party shall file the following with the arbitrator by not later than November 12, 1999, and provide a copy to each other: (a) All exhibits and documents, which shall be prenumbered, proposed to be introduced into evidence at the hearing; and (b) The names and addresses of all witnesses intended to be called at the hearing by each party, and the subject matter of their testimony. Expert witnesses shall be so designated. Given the limited number of issues present in this dispute, the arbitrator is inclined to conduct the final hearing by telephone, with all parties and their witnesses present together in a single location, such as an attorney s office, and the arbitrator 3

4 participating from Tallahassee. If this procedure is used, a hearing could generally be scheduled more quickly than if travel by the arbitrator were required. If a party has an objection to this procedure, it must file its objection within 14 days of this order. Within 14 days from the date of this order, the parties shall confer and supply the arbitrator with two mutually acceptable hearing dates between December 1, 1999, and December 21, 1999, and a suggested hearing location, which must be equipped with a speakerphone. If one party is unavailable to the other, either to meet as required by this order, or to coordinate a hearing schedule, each party shall nevertheless file a unilateral response, providing the information required above, including dates on which the party is available for hearing. Based on the foregoing, it is ORDERED: 1. The respondent s examples of selective enforcement concerning the cats and birds are STRICKEN. 2. The parties shall comply with the foregoing prehearing procedure. FAILURE TO COMPLY WITH THE REQUIREMENTS OF THIS ORDER MAY RESULT IN DISMISSAL OF THE PETITION FOR ARBITRATION OR OTHER SANCTION AS PROVIDED IN RULE 61B , FLORIDA ADMINISTRATIVE CODE. 3 The Maltese dog in unit 2008 died in February

5 DONE AND ORDERED this 25 th day of October 1999, at Tallahassee, Leon County, Florida. Cassandra Pasley, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida Copies furnished via U.S. mail to: Amy L. Koltnow, Esq., Becker & Poliakoff, P.A., 3111 Stirling Road, Ft. Lauderdale, FL Attorney for petitioner Ira L. Zuckerman, Esq W Oakland Park Blvd., #215 Ft. Lauderdale, FL Attorney for respondent 5