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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SOUTH BAY CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No ANTHONY AND JENNIFER DUBLINO, Respondents. / SOUTH BAY CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No GREG TOLEDO, Respondent. / SOUTH BAY CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No GEORGE CRISPIN and MELISSA SABINO, Respondents. / FINAL ORDER 1

2 Comes now, the undersigned arbitrator, and enters this final order as follows: The association filed its petitions against the above-named respondents on February 24, 1997, seeking removal of respondents dogs, each of which weighed in excess of twenty-six (26) pounds, in contravention of Article 6, Section 17.2 of the declaration of condominium, as amended in Said section reads, in part, as follows: All Unit Owners and tenants are required to register pets currently kept by them in the Condominium with the Association. The registration shall include the pet s name, type, color, weight, age, license registration number and a recent photograph. All pets properly registered shall be permitted to be kept in the Condominium for their natural lives. No pets greater than twenty-six (26) pounds shall be permitted... On December 29, 1997, these cases were consolidated, and on January 30, 1998, respondents affirmative defenses of unclean hands, equal protection, estoppel, selective enforcement, and waiver were stricken. At the hearing, the remaining defense of laches was before the arbitrator; that is, whether the fact that petitioner took no affirmative action to enforce the pet restriction for years makes it inequitable to enforce the restriction at a later date. FINDINGS OF FACT The evidence showed that respondent Toledo purchased his unit in 1991, and that his dog, then an English Bull Terrier puppy, entered the unit in May, Respondent Dublinos bought their unit in 1990 and brought in a Dalmatian in April Respondents Crispin and Sabino bought two units in 1993 and moved into each unit with one dog, a mixed breed Shepherd and a Whippet, in Each of the dogs was 2

3 over the twenty-six pound weight limit when it entered the units, with the exception of respondent Toledo s dog, which was a young puppy which later grew to exceed twentysix (26) pounds. In 1995, the association brought suit in county court against a tenant who possessed an overweight dog in the case, South Bay Club v. Michele Verdi, Case No (2). A motion for summary judgment was filed by defendant, attached to which were several affidavits, including the affidavits of respondents in the instant case. In their affidavits in support of defendant s motion for summary judgment, respondents testified that they each possessed a dog in excess of the twenty-six (26) pound weight limitation, and that no action had been by the association against them. Despite respondents dogs having entered the condominium building in 1993, 1994, and 1995, credible testimony was offered that the association did not have notice of respondents overweight dogs until shortly after the affidavits were filed in the Spring of In June and July of 1996, letters were sent to respondents from Donald Jones, then on-site building manager ( ), informing them that their dogs exceeded the twenty-six (26) pound limit, and that they would need to be removed from the premises. Until receiving copies of respondents affidavits from the association attorney, Mr. Jones had no notice of the violations. Alison M. Igoe, president of the association from , also testified that she was unaware that respondents dogs violated Article 6, Section 17.2, until she too received copies of respondents affidavits in the Verdi case. She stated that she has never seen the Crispin-Sabino dogs; she once saw the Dublino dog at two months of age; and that she saw respondent Toledo s dog on one or two occasions. She emphasized that it never occurred to her to wonder whether a dog 3

4 was over twenty-six (26) pounds, but that when she once saw a Great Dane, she thought it must have weighed a lot. Louis Petrole, association board member since 1994, substantiated the fact that the association was unaware of the violations until sometime after the Spring of 1996, when respondents affidavits were received. Although the dogs in question were brought into the condominium in 1993, 1994, and 1995, the testimony offered clearly supports that the management and the association was unaware of the weight violations until the Spring of South Bay Club Condominium Association, Inc. is a 347 unit, ten-story building with over 30 units on each floor. Between twenty and thirty people move in or out in any given month. Pursuant to the declaration and the rules, pets are to be under twenty-six (26) pounds and are to be carried when outside the unit, including in the lobby. The building is serviced by a north and south side elevator, which may be ridden from the garage level up to the tenth floor, as well as by a lobby elevator. At least four stairwells may also be utilized for entrance or exit. Typically, small dogs may be seen being carried by their owners on the lobby elevator and through the lobby. Respondents testified, however, that they utilized the north and south elevators from their units to the garage and street below, and so did owners of other overweight dogs. The stairwells and elevators are not policed by security, although the lobby is. Dogs whose owners who used the north and south elevators down to the garage and out onto the street avoided detection in the lobby and were generally much less visible. Testimony was offered that the condominium building was not policed for large dogs, that people were not on the look out for them. In general, a don t ask - don t tell atmosphere prevailed with regard to overweight dogs, and with the exception of the 4

5 Verdi case, there was no testimony by the association or management that they ever received any complaints about an overweight dog from any other unit owner. Not only were overweight dogs less visible and not subject to being reported, but often an owner would misstate his pet s weight on the pet registration form in order to avoid detection. Respondent Dublino testified that at one point several dog owners had a discussion in the hallway and decided informally to report their dogs weights as under twenty-six (26) pounds. In fact, the testimony offered and exhibits entered into evidence support the fact that respondents Crispin-Toledo and Dublino registered their dogs as weighing under twenty-six (26) pounds when in fact they did not. (Respondent Toledo s dog was registered as a puppy.) Based upon the substantial weight of the evidence, it is clear that the association and the management was not on notice of respondents overweight dogs until respondents affidavits regarding their dogs weights was furnished to them in the Spring of Prior to receiving any notice, petitioner had no duty to act. Within only weeks of having received the requisite notice, however, letters were sent to respondents requesting removal of their overweight dogs, and this arbitration was thereafter initiated. CONCLUSIONS OF LAW Assuming, arguendo, that petitioner was on notice of each dog from the very moment it entered the condominium, respondents defense of laches would still fail. The evidence presented substantiated the fact that enforcement action was taken against the owner of an overweight dog in 1993 as well as against a Mr. Pleyer and Michele Verdi in In all, between 1993 and 1996, albeit mostly in 1996, ten (10) enforcement actions were brought against the owners of overweight dogs. As 5

6 previously stated, supra, Respondents dogs entered the premises in 1993, 1994, and Laches does not require the association to initiate legal action immediately upon discovery of a violation. Review, Payne v. Hillsboro Windsor Apartments, Inc., Arb. Case No , Summary Final Order (June 4, 1993)(arbitrator did not apply laches where there was a 14-month delay between the adoption of new rental restrictions and the filing of a petition for arbitration). The doctrine of laches simply finds no application to the instant case. In Brumby v. Brumby, 647 So. 2d 330, 331 (Fla. 4th DCA 1994), the District Court of Appeal defined laches as follows: Laches is based upon an unreasonable delay, Bethea v. Langford, 45 So. 2d 496 (Fla.1949), in asserting a known right which causes undue prejudice to the party against whom the claim is asserted. Van Meter v. Kelsey, 91 So. 2d 327 (Fla.1956); Smith v. Town of Bithlo, 344 So. 2d 1288 (Fla. 4th DCA 1977), cert. denied, 355 So. 2d 517 (Fla. 1978). In determining whether delay constitutes a bar to a claim, the court must look to whether the delay has resulted in injury, embarrassment or disadvantage to any person, and particularly to the person against whom relief is sought, whether the delay has been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and whether, during the delay, there has occurred a change in conditions that would render it inequitable to enforce the right asserted. Nowell v. Nowell, 634 So. 2d 235 (Fla. 1st DCA 1994) (citing Stephenson v. Stephenson, 52 So. 2d 684 (Fla. 1951)). Finally, the doctrine of laches is an equitable one. One seeking equity must come to the court with clean hands. In the instant case, knowing falsification of the pet registration forms is one factor to be taken into consideration in determining whether to apply laches in this instance. 6

7 WHEREFORE, based upon the evidence presented at the hearing, the relief requested in petitioner s petition is hereby GRANTED. Respondents shall remove their dogs from the condominium property within thirty (30) days of the date of this order. DONE AND ORDERED this 31st day of March, 1998, at Tallahassee, Leon County, Florida. Donna La Plante, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT IS FILED BY A PARTY WHO IS ADVERSELY AFFECTED IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. 7

8 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Usher Bryn, Esquire, 2999 N.E. 191 Street, Aventura, FL, and Leslie Hecker, Gables One Tower, 1320 South Dixie Highway, Suite 1100, Coral Gables, FL, 33146, on this the 31st day of March Donna La Plante, Arbitrator 8