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 CAMELOT TWO CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No STEVE DIRSE and JULIE H. DIRSE, Respondents. / FINAL ORDER Comes now, the undersigned arbitrator and enters this order as follows: The petition for arbitration, which was filed in this matter on May 24, 2000, seeks as relief an order requiring the respondents/unit owners to remove their dog from the condominium property. The petitioner asserts as authority for the relief requested, Article VII, Section 15(a) of the declaration of condominium, which provides that permitted pets are dogs and cats which do not exceed 15 pounds, birds and fish. The respondents/unit owners filed an answer not denying that their dog, a beige Labrador, is over the 15-pound weight limit contained in the declaration. On this basis it is determined that the petitioner has presented a prima facie case entitling it to the relief requested. The respondents raised in their answer the affirmative defense of selective 1

2 enforcement. In response to an order, the respondents provided seven examples of dogs over the weight limit. The petitioner addressed those examples, stating that five of the dogs had been grandfathered in. The petitioner s information further provided that the sixth dog, a German Shepherd, had been removed from the property in December According to the petitioner, the seventh dog, a mixed breed, does not exceed the weight restrictions. According to the respondents, there were other violations of the weight limit which they were still investigating. On April 9, 2001, the undersigned arbitrator entered a case management order and order setting final hearing wherein it was held that respondents assertion of crime in the neighborhood as justification for the over-sized dog was not a valid defense to the association s claim of violation of the declaration. Self-help measures cannot be condoned; accordingly, the defense suggesting a lack of security was stricken. The arbitrator next addressed the defense of selective enforcement, in which the respondents contended that they were singled out because of a prior conflict with the association regarding their roof. The arbitrator noted that the necessary elements of the selective enforcement defense are that other comparable violations exist of which the association was aware, yet it took no action, and the motive for the selective enforcement was immaterial. Thus, evidence regarding the roof incident would not be admissible. The April 9, 2001, order next addressed the respondents assertion that the association did not have the authority to grandfather-in pets, which the arbitrator addressed by holding that an association may give notice that it intends to enforce a previouslyunenforced provision, and existing violations are grandfathered in, citing Chattel Shipping v. Brickell Place Condo. Assn., Inc., 481 So. 2d 29 (Fla. 3rd DCA 1985). The April 9, 2001, 2

3 order is incorporated herein by reference. The case proceeded to final hearing to consider, in part, the defense of selective enforcement. The hearing was conducted with the arbitrator presiding by telephone conference from Tallahassee, Florida, and the parties and witnesses appearing in Miami, Florida, on May 4, The petitioner was represented by Carlos A. Triay, Esq., and the respondents were represented by Daniel Grissom, Esq. This final order is based upon consideration of the entire record in this matter. The petitioner presented the testimony of Sharon Stroud, who stated that she had been a board member of the association since She explained that she was present during a board meeting on May 8, 1995, in which it was discussed that the board had received complaints from unit owners of oversized dogs in the community. It was determined that the association would adopt a grandfather clause to enforce the 15-pound weight limit from that time forward. The matter was turned over to counsel to prepare the appropriate documentation. In a meeting on June 12, 1995, grandfathering was approved by the board, a letter was mailed out and existing pets were registered as grandfathered. Ms. Stroud stated that she saw 41 applications submitted to grandfather-in pets by the cutoff date of July 20, From that date forward, cases of over-sized dogs seen by board members, or complaints of non-conforming pets were turned over to the property manager to investigate. The unit owner would be given a certain time frame to comply with the regulations and if he or she did not, the matter was turned over to the association s attorney. Ms. Stroud stated that she was personally aware of dogs, other than that of the present respondents, which were removed due to being over the weight limit. Regarding the respondents' dog, the property manager was directed to send a letter requiring that the 3

4 dog be removed. Ms. Stroud testified that she and the board are not aware of any oversized dogs in the condominium which are presently in violation, besides that of the respondents. Petitioner presented Armando De Solo, who testified that he had been the manager of the condominium since March He testified that violations of the pet regulations are reported by unit owners and the board. Mr. De Solo stated that he was not aware of any current violations of the pet regulations in the condominium, other than that of the respondents, who purchased their unit in Other violations were also reported and Mr. De Solo took the same action as against the respondents: sending letters demanding removal of the pet. In three cases, the offending dogs were removed from the condominium property. He further testified that, when he receives a complaint about a dog over the weight limit, he looks up in the association records to see whether the dog is grandfathered. Under this provision, dogs registered as grandfathered can be kept until the dog dies. If it turns out that the dog in that unit is grandfathered, Mr. De Solo reports to the person complaining that the dog is grandfathered in. Respondents presented the testimony of Ray Wlazlo, who testified that he had been a resident of the condominium for ten years. He has never been a board member or officer of the association. Mr. Wlazlo testified that, after the 1995 grandfathering took effect, he had seen new dogs on the condominium property which are over the weight limit. He did not know if directors Sharon Stroud or Denise Gomez were aware of the infractions. Respondents next witness, Julie Dirse, a respondent, testified that she had lived in Camelot since July She testified that she was aware that bringing the beige Labrador onto the condominium property was a violation of the condominium documents; 4

5 however, another resident, who said she was a renter, told Mrs. Dirse that the weight limit was not enforced by the association. Mrs. Dirse testified that she sees oversized dogs every day and did not know how it was possible for the board members to also live there and not be aware of the dogs. The respondents presented photographs taken on the condominium property in October 2000 and April 2001, which respondents contend depict violations of the dog weight limit. Regarding respondents exhibit nos. A(11) and A(12), Mrs. Dirse testified that the black dog shown in the pictures looks to be over 15 pounds and the dog s owner was the individual who told Mrs. Dirse that the association did not enforce the weight limit provision. Ms. Stroud testified that she did not have knowledge of this dog and did not recognize its owner (whose back is turned in the photos). Mr. De Solo testified that he had not seen this dog before and that he did not know the person walking the dog. Addressing respondents exhibit nos. A(1) and A(4), Mrs. Dirse testified that she was told that this dog, a chow, which is over the weight limit, is grandfathered in 1. Mrs. Dirse testified that the Dalmatian in photos in exhibit nos. A(5) and A(6) lives in the community and looks new; she did not know if the dog is grandfathered. The respondents presented the testimony of Steve Dirse, respondent, who testified that the 1 These photos and shots of a small white poodle apparently under the weight limit were presented for the purpose of showing that there are other violations of the provision of the declaration requiring dogs to be on a leash. The undersigned notes that the association presented no competent evidence that the respondents dog was ever off its leash or that it acted viciously, the additional theories supporting its claim. Accordingly, the issue of the dog being a nuisance is not addressed herein. Purported examples of selective enforcement regarding violations of the leash provision are immaterial to a consideration of whether the association selectively enforces the weight restriction. 5

6 Dalmatian shown is new. Ms. Stroud testified that the association has several Dalmatians which are grandfathered in. Mr. De Solo testified that the Dalmatian shown in the picture could be one of the Dalmatians grandfathered-in. Addressing respondents exhibit nos. A(13) and A(14), Mrs. Dirse testified that this dog, a schnauzer, lived in the condominium, but she does not know if the dog is still there and does not know its owners. She added that she believes the dog weighs 20 pounds, as it is larger than Mrs. Dirse s other dog, a 15-pound terrier which is not at issue in this case. Mrs. Stroud testified that she recognized the vehicle shown in the picture and was aware of the dog, which lived in Building 14 or 15. The dog is under the weight limit and also is no longer in the community, she testified. Mr. De Solo testified that the schnauzer is no longer present and did not weigh over 15 pounds. Regarding the dog in respondents exhibit nos. A(7) and A(10), Mrs. Dirse testified that this dog, a pug, appears to weigh at least 20 pounds. She stated that she did not know how long the dog had been kept on the property and did not know if the dog was grandfathered. She did not know which unit the dog is kept in. Ms. Stroud testified that in her opinion, the dog in the photos was under the weight limit. She did not recognize the person walking the dog or know if she lives in Camelot. Ms. Stroud did not know if she had seen this dog before. There are over-sized pugs that have been grandfathered in. Regarding A(7) and A(10), Mr. De Solo testified that he did not recognize the dog in the photos. Addressing respondent s exhibit no. A(2), Mrs. Dirse testified that this dog is part boxer. Mrs. Dirse asked the lady walking the dog the dog s age and was told the dog is just over a year old. Mrs. Dirse stated that, therefore, it cannot be grandfathered in. Mr. Wlazlo 6

7 testified that he was not sure which dog was depicted in A(2). Ms. Stroud, indicating that the dog in A(2) was grandfathered in, stated that the dog appears to be an older dog which lives in Building 30. It weighs 40 pounds. However, she did not recognize the person with the dog. She added that it is impossible from these photos to be sure which dogs are which. The condominium is not a gated community and persons not living there use it as a shortcut to 96th Street. On the basis of the above evidence, the undersigned concludes that the respondents did not meet their burden to show that the association failed to assert the condominium documents against other violations of the weight limit of which the association through its board was aware. There are apparently many dogs in the community of 180 units and there may well be dogs that are over the weight limit that are not grandfathered in. In order to determine this however, the association would need to know which unit the dog was being kept in so that the records could be checked to determine if the dog was grandfathered. Both respondents testified that they had not reported over-sized dogs to the association. They argued that Mr. De Solo was seldom on the property. In that regard, it is noted that, although the association possibly could have been more diligent in policing the 180-unit property, Mr. De Solo s testimony that he acted on reports of over-sized dogs and the further evidence that offending dogs were removed is accepted as reflecting that reasonable measures are taken to enforce the provision. The undersigned has considered the respondents argument that the burden of establishing selective enforcement is impossibly difficult since persons are reluctant to come forward and admit the size of their offending dogs. The burden, however, is on the party asserting the affirmative defense to establish facts constituting the elements of the 7

8 defense. Certainly, that includes demonstrating clearly that the animal cited as an example of selective enforcement is over the weight limit and that the board is aware of the infraction. Since the existence of the violation for a time would give rise to a presumption that the board had ignored or condoned the infraction, the association would then arguably have the burden of establishing that it had taken action to enforce the violation, or that the pet was an exception. In this case, the first two prongs of the defense, violation and knowledge, were not established. Thus, the preponderance of the evidence did not establish that the association condoned violations of the weight rule in non-grandfathered pets. Accordingly, the defense of selective enforcement is STRICKEN. See Cypress Lake Estates Condo. Assn., Inc. v. Snyder, Arb. Case No , Summary Final Order (Dec. 27, 1994) (where association was not shown to have had knowledge of other illegal oversize dogs in the condominium, and where other large dogs in the complex were permitted by developer and grandfathered-in by the association, selective enforcement has not been established). Wherefore, based upon the foregoing, it is ORDERED and ADJUDGED: The relief requested by the petitioner is GRANTED. Respondents shall remove the beige Labrador from the condominium property within 30 days of mailing of this final order. DONE AND ORDERED this 10th day of May, 2001, at Tallahassee, Leon County, Florida. 8 g Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street

9 RIGHT TO TRIAL DE NOVO Tallahassee, Florida As provided by 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. 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 s , F.S., 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 faxed and mailed by U.S. mail, postage prepaid, to the following persons this 10 day of May, 2001: CARLOS A TRIAY ESQ P O BOX MIAMI FL Petitioner s attorney DANIEL GRISSOM ESQ STABINSKI AND FUNT 757 NW 27TH AVE 3RD FLOOR MIAMI FL Respondents attorney Tyler Powell, Arbitrator 9