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 The Claridge Condominium Association, Inc., v. Petitioner, Case No Cynthia Donelan, Respondent. / FINAL ORDER Pursuant to notice, a final hearing was held in this matter on October 20, 2004, and November 19, 2004, during which the parties presented the testimony of witnesses and tendered documents into evidence. The parties were permitted to submit proposed orders and written closing arguments and supporting/verifying affidavits of the testimony of certain witnesses. This order is entered after consideration of the record in this matter. Procedural History On May 3, 2004, the Claridge Condominium Association, Inc. (the association) filed a petition for arbitration naming Cynthia Donelan as the respondent. In its petition, the association alleged that the respondent s dogs barked excessively and were a nuisance, in violation of the association s governing documents. The respondent answered the petition for arbitration on July 26, 2004, denying that her pets were a nuisance. Thereafter, the parties attended the final hearing on the dates referenced above. Findings of Fact 1

2 1. The respondent owns a unit within the condominium and is bound by the association s governing documents. 2. The Claridge Condominium Association, Inc. is responsible for the operation and maintenance of the condominium property. 3. The respondent keeps two small Yorkshire terriers in her unit. 4. Article 15E of the declaration of condominium prohibits nuisances on the condominium property. 5. The association presented the testimony of its board president, Dr. George Kuzmishin, who has been a board member since According to Dr. Kuzmishin, the association had received a complaint regarding the respondent s dogs barking by the previous neighbors of the respondent, although the present board was not made aware of these complaints until the respondent s present neighbors voiced complaints about the noise. Dr. Kuzmishin identified the Bergmans, who live across the elevator lobby from the respondent, and Bill Wicka, the unit owner who resides directly below the Bergmans, as the owners who had made recent complaints regarding the respondent s dogs barking. Dr. Kuzmishin testified that after receiving complaints from the Bergmans, the board attempted to resolve the dispute. Dr. Kuzmishin stated that he offered to mediate the dispute between the respondent and her neighbors but the respondent refused. After receiving the recent complaints, the board also requested the respondent to cooperate in controlling the noise by using an anti-barking device and by voluntarily agreeing to remove one of her dogs when her neighbors, the Bergmans, were staying in their unit. The problem persisted and the board met in April of 2004, and determined the dogs were a nuisance. In the process of making its determination, Dr. Kuzmishin testified that the board considered the written complaints of the Bergmans and Bill Wicka, as well as a set of videotapes that had recorded the dogs barking 2

3 submitted to it by Mrs. Bergman. The board also considered a written summary prepared by a realtor with whom the previous owners of the Bergman s unit had listed the unit for sale. The realtor s summary reported comments from prospective purchasers who had looked at the unit (prior to the Bergman s purchasing it) that expressed concern about the barking coming from the respondent s unit. 7. The association also presented the testimony of the respondent s neighbors, Dr. and Mrs. Bergman. The Bergmans testified that they purchased their unit as a retirement home and resided in the unit when they came to Florida on vacation. The Bergmans described the dogs barking as occurring at all times of the day and night and that the duration of the barking varied anywhere from a few minutes to thirty minutes or longer and could be heard in every room of their unit. They testified that they had purchased a sound machine to deal with the disturbance caused by the dogs barking. They had also resorted to using headphones to listen to their television and had cut their visits to Florida short on certain occasions because of the barking. The Bergmans initially tried to obtain the respondent s cooperation in controlling the noise caused by the dogs barking by contacting the respondent directly. However, after their relationship with the respondent deteriorated, they voiced their complaints to one of the property managers, Jim Murphy, and ultimately contacted an attorney to assist them in resolving the problem. 8. The association also presented the testimony of Bill Wicka, who lives directly below the Bergmans. Mr. Wicka, who is a seasonal resident, testified that he knows the respondent and is aware of her dogs. He testified that he can hear the dogs barking in his unit and that he has been disturbed on several occasions by the noise. He stated that he had never submitted a formal complaint about the dogs barking until he was asked by the Bergmans to do so because he wanted to stay on good terms with the 3

4 respondent. He testified that he had previously told the respondent that her dogs were a problem and that if he resided on the same floor as the respondent that he would not be able to live with the noise. He also testified that he had purchased a sound machine to drown out the barking, which he stated occurred at different times of the day, including the morning, and was a consistent problem. He stated the barking would sometimes last up to thirty minutes or longer and that the barking could be heard for considerable periods of time three to four times a week. 9. The association also presented testimony of Patricia Candido, the realtor with whom the previous owners of the Bergman s unit listed the property. Ms. Candido testified that she was concerned during the time she was showing the property to prospective buyers because the dogs' barking could be heard. She stated that she prepared a written report and provided it to the owners of the unit, as she believed they should be aware of the reasons why qualified buyers may not have been interested in purchasing the unit. She also testified that she voiced her concerns with respect to the dogs barking to the association s board president, Dr. Kuzmishin. 10. The respondent presented the testimony of one of the condominium s property managers, Vicki Murphy. Mrs. Murphy testified that she knew the respondent and her pets. She indicated that she had previously not been aware of any complaints made by the respondent s neighbors, but had been informed about the complaints voiced by the Bergmans and then Mr. Wicka. She testified that she had been to Mr. Wicka s unit on a few occasions but had not heard the respondent s dogs barking in an excessive manner. She verified that she was not aware of any complaints from the unit owner who lives directly below the respondent s unit, or the unit owner who lives in the unit that shares a wall with the respondent s unit. Mrs. Murphy described the building in general terms and stated that noise tends to travel in the building. Ms. Murphy also 4

5 testified to a period of time in which a good deal of construction was completed on the building and that there were a number of workers coming in and out of the building, but Mrs. Murphy could not specify the exact dates of the construction. 11. The respondent also presented the testimony of respondent s veterinarian, Dr. Bellows, and Dan Sammons, a dog trainer who had worked with both of the respondent s dogs during the past year. Both witnesses indicated that the pets were not likely to be nuisance barkers but neither witness had observed the respondent s dogs on a consistent basis while on the condominium property. 12. The respondent presented the testimony of Thelma Martin, the unit owner who lives directly below her. Ms. Martin testified that she has occasionally heard the respondent s dogs barking in the morning, but she had not known them to bark constantly or excessively and did not consider the dogs to be a problem. Ms. Martin also testified that she was a seasonal resident and that she had spent more time away from the condominium in the last year and was not present during the time the condominium property was undergoing renovations. 13. The respondent also testified at the hearing and denied that her dogs barked excessively. Ms. Donelan testified that her previous neighbors, the Kauffmans, had never expressed any concerns about her pets until after they moved from the unit. She also testified that after the Bergmans moved next door to her that she was not aware of any complaints until the property manager notified her that they were requesting that the barking be addressed. In an effort to accommodate her neighbors, Ms. Donelan stated that she agreed to voluntarily remove one of her dogs from the property when the Bergmans gave her prior notice of their coming to stay in their unit. She also testified that she had employed a dog trainer to assist her in controlling certain behavioral problems with the dogs, but that barking was not the problem she was 5

6 experiencing with her pets. She testified that she only purchased the unit in the condominium property after receiving the board s verbal approval to keep a second dog in her unit on a part time basis. She admitted that the board had asked her to use an anti-bark collar on the dogs in response to the Bergmans complaints, but could not place a collar on one of the dogs because he had a medical condition that would be aggravated by the use of the collar. She testified that she had used a bark machine in her unit to deter any barking from her dogs. She also testified that the property manager had asked her to keep her pets in the back of her unit when the neighboring unit was being shown (prior to the Bergman s purchase of it) and that she had done this to prevent the dogs from barking when they heard people coming and going in the elevator lobby. Conclusions of Law The association asserts in its petition for arbitration that the respondent s dogs barking violates section 15E of the declaration of condominium in that their barking constitutes a nuisance. The respondent maintains that her dogs are not a nuisance. The respondent also asserts the defense of laches, arguing that that board has failed to take action in response to a prior complaint made in the year 2001, and therefore should be barred from doing so now. She further asserts that the board made an improper determination that her pets were a nuisance, arguing that the board made its decision in response to the threat of litigation by the Bergmans who had retained an attorney to address the dispute. She maintains that the association denied her due process by failing to allow her to present any evidence that her pets were not a nuisance prior to making its decision that her pets should be permanently removed from the property. Pursuant to section 15B of the declaration of condominium, unit owners are allowed to keep up to two pets in their units, with board approval. However, this section 6

7 also provides that [a]ny pet which the Board in its sole discretion determines is creating a nuisance shall be permanently removed from the Condominium Property. Section 15E of the declaration of condominium prohibits any nuisances or any use or practice which is the source of annoyance to residents or which unreasonably interferes with the peaceful possession and proper use of the Condominium Property by residents and/or Owners The first issue for consideration by the arbitrator is whether the respondent is in violation of section 15E of the declaration. Another issue which will be addressed is whether the board s actions of declaring her pets a nuisance was a valid exercise of its authority under section 15B of the declaration. There is factual support in the record for finding that the dogs barking disturbs other residents of the condominium property and that it does constitute a nuisance under section 15E of the declaration of condominium. A nuisance is that which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or occupancy physically uncomfortable. Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 130, 198 So. 819, 822 (Fla. 1940). The testimony of the Bergmans and Mr. Wicka reflects that although there is no particular pattern to the dogs barking, the barking has interfered with their ability to enjoy their units on a consistent basis. Their testimony indicates that they have been awakened by the dogs barking. This is consistent with the testimony of Ms. Martin, the respondent s witness, who admitted that she has heard the dogs barking in the early morning hours. Although Ms. Martin does not consider the barking to be a problem, Mr. Wicka and the Bergmans do. 1 According to Mr. Wicka, the dogs have been heard barking for thirty 1 Mrs. Bergman testified that she did not think she should be able to hear the dogs barking in the respondent s unit at all. However, as the Division has recognized in past decisions, a certain amount of 7

8 minutes or longer at various times throughout the day and this occurs at least three or four times a week. This testimony is consistent with the complaints voiced by the Bergmans. The testimony also indicates that the barking has occurred with more frequency on occasions when the respondent was not at home. Although the respondent maintains her pets do not bark excessively, she cannot attest to their behavior when she is away from her unit. The respondent produced only one witness, Ms. Martin, referenced above, who lives in close proximity to her unit who could testify with respect to the dogs barking. While this witness testified that she has walked past the respondent s unit on occasion without hearing any barking from the dogs, she was not able to verify whether the dogs were in the respondent s unit at the time she did so. Although there was some evidence of construction being completed on the building that may have incited the dogs to bark during certain periods of time, there was no specific testimony as to the dates that the renovations occurred and whether any noise from the construction caused the respondent s dogs to bark. The respondent s defense of laches was not supported by the evidence presented at hearing. The facts in this case establish that the association received a written complaint about the respondent s dogs from the respondent s previous neighbors in 2001 when these unit owners moved from the condominium property. After these unit owners moved, the unit remained unoccupied until the Bergmans purchased it in the Neither one of the Bergmans initially resided in the unit on a permanent basis when they first purchased the unit in However, the Bergmans testimony reflected that the barking was an annoyance for them during the time they visited the unit in Additionally, the Bergmans first attempted to resolve the dispute with the barking is to be expected in a community that permits dogs. See Villas of West Miami Condo. Assoc., Inc. v. Fernandez, Arb. Case No , Final Order (February 25, 2004). 8

9 respondent directly. After their attempts to resolve the problem failed, the Bergmans addressed the issue through the property manager, and the respondent agreed to voluntarily remove one of her pets whenever the Bergmans were visiting. When this did not permanently resolve the barking issue, the association was asked to address the problem, which it attempted to do prior to making a determination that the dogs should be permanently removed in April of The argument that the board waited too long to take action and therefore should be precluded from seeking enforcement of 15E of the declaration must fail, as there was no unreasonable delay on the part of the association in seeking enforcement of its nuisance prohibition and any delay in the board s actions resulted from the board s attempts to resolve the issue by the least restrictive means. Compare Cypress Bend Condo. I Assn. v. Dexner, Arb. Case No , Final Order (May 19, 1997)(laches defense failed despite association waiting four years to take legal action where noise generated by visiting unit owner was not constant; association s delay was not considered unreasonable where association was placed in position of having to determine whether source of complaint would continue.) In light of the finding that the dogs are a nuisance under section 15E of the declaration, the issue raised by the respondent concerning the propriety of the board s determination that the dogs were a nuisance under section 15B of the declaration will be addressed only briefly. Inasmuch as the declaration of condominium allows for the board to make certain determinations, such as whether a unit owner s pet is a nuisance, the board s decision in this case was not an invalid exercise of its authority. Although the respondent argues the board acted improperly, the board s investigation and subsequent determination was not unreasonable or arbitrary. The respondent s argument that she was not afforded due process in that the board failed to give her an opportunity to present evidence on her own behalf at the meeting at which the nuisance 9

10 issue was debated is unpersuasive in view of the fact that the association s declaration of condominium charges the association with right and the responsibility of enforcing the restrictions contained therein. The due process concerns raised by the respondent have been addressed in the present arbitration proceeding, as the respondent has been afforded an opportunity to present evidence on her behalf to an impartial arbitrator. The board s determination that a nuisance existed does not come here with a presumption of correctness, with this proceeding operating in the nature of an appellate review of the board s action. Consequently, even assuming the language of the section 15B could be properly interpreted to mean that the respondent was entitled to an opportunity to present evidence to the board prior to the board making its determination, its failure to provide the respondent with a reasonable opportunity to be heard is not fatal under these circumstances. 2 Based on the totality of the evidence presented as to the frequency and duration of the barking, the undersigned finds that the barking generated by the respondent s dogs constitutes a nuisance and is prohibited by section 15E of the association s declaration of condominium. Therefore, the association s request for relief will be granted and the respondent is required to permanently remove her two dogs from the condominium property. 3 It is therefore ORDERED that within sixty (60) days of the date of this order, the respondent shall permanently remove both dogs from the condominium property and shall abide by section 15E of the declaration of condominium in the future. 2 In certain circumstances, a board s failure to afford a unit owner notice and an opportunity to be heard could easily defeat the validity of the board action taken. Review Donnelly v. Boca Cove Condominium Association, Inc., Arb. Case No , Final Order (December 21, 1993) in which the arbitrator found that the association had not afforded due process to the owner where the owner was unable to attend a fining hearing, and the board refused to reschedule the hearing, and where the charging letter written by the association failed to inform the owner of the date of the alleged violations giving rise to the fine. 3 It should be noted that this ruling does not preclude the respondent from obtaining other pets provided the pets are maintained in accordance with the association s governing documents. 10

11 Florida. DONE AND ORDERED this 4 th day of March, 2005, at Tallahassee, Leon County, Catherine Bembry, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and facsimile to the following persons on this 4 th day of March, 2005: Ashley D. Lupo, Esquire 850 Park Shore Drive, 3 rd Floor Naples, Florida Facsimile: (239) Samuel B. Reiner, Esquire Reiner & Reiner, P.A South Dadeland Blvd. Suite 1408 Miami, Florida Facsimile: (305) Catherine Bembry, Arbitrator Right to Appeal As provided by section , Florida Statutes, this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. Attorney s Fees 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. 11

12 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. 12