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 SUNSET GROVE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No JANET FINNEY, Respondent. / FINAL ORDER Comes now, the undersigned arbitrator, and enters this final order as follows: The petitioner/association filed its petition on September 2, 1998, seeking removal of a Rottweiler dog owned by Janet Finney, the respondent/unit owner. The case proceeded to final hearing by telephone conference call, which was conducted on December 7, 1998, at which both parties presented testimony and argument. Documentary evidence previously furnished was moved into evidence. The unit owner filed a memorandum of law on December 22, Pursuant to the association s motion, the case was abated for settlement on December 23, The arbitrator s order provided that, if the case had not been settled by December 30, the association was to file its memorandum of law on that date. The association filed its memorandum on December 30. On January 6, 1999, the association filed a notice that settlement negotiations had failed. This order is based upon the complete record in the case. It is undisputed that the dog in question has bitten two individuals on the condominium property. The first individual was Fred, a roofer working for a contractor, and the incident occurred 1

2 on August 26, The second incident involved a 14-year old boy, a resident of the condominium named Ben, in an incident on July 10, On both occasions, the dog was quarantined for approximately 10 days following the bites, by Pinellas County Animal Services. As a basis for seeking removal of the dog, the association asserts that the animal is a nuisance. It seeks to invoke article X of the declaration of condominium, which recites in pertinent part as follows: X USE RESTRICTIONS The use of the property of the condominium shall be in accordance with the following provisions: A. Nuisances No nuisance shall be allowed upon the condominium property nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents. In Valencia Village Condo. Assn., Inc. v. Aloof, Arb. Case No , Order Granting Motion for Emergency Temporary Injunctive Relief (July 5, 1996) and Final Order (August 9, 1996), a 110-pound Rottweiller which had bitten a child and was prone to bite when excited, was ordered removed from the condominium property because it was found to be in violation of a declaration provision prohibiting pets which cause or create a nuisance. In Outdoor Resorts at Long Key, Inc. v. Kelly, et al., Arb. Case No , Final Order, May 22, 1997, two Dalmatians were ordered removed after two incidents in which the dogs attacked or bit other dogs. While the dogs showed no propensity to injure persons, it was possible that persons attempting to save their dogs would be injured. The arbitrator held that other owners have the right to walk their pets on the common elements without fear of molestation or predation. The arbitrator, in discussing the possibility that a person might be injured, stated: An association has the duty of maintaining the condominium property in a safe manner, and may face liability where a dog known to bite is permitted to remain on the property. Barrwood Homeowners Association, Inc. v. Maser, 675 So. 2d 983 2

3 (Fla. 4th DCA 1996) 1. Although the dogs in this case cannot be characterized as vicious, enough parallel exists between these facts and the facts presented in the Barrwood case to warrant a legitimate association concern for its potential liability and for the safety of its residents. The arbitrator in the Outdoor Resorts case held that the Dalmatians constituted a nuisance to the surrounding community warranting their removal. In the present case, the other unit owners and their families, who include many elderly people as well as numerous young children, have a right to go about the condominium property without fear of Ms. Finney s dog. To the extent that the dog s presence constitutes a sufficient injury to the legal rights of her neighbors to amount to a nuisance violative of the declaration, there is sufficient evidence to warrant removal of the dog. Ms. Finney argues that a nuisance is a continuing offensive activity, and that the two incidents with her dog, which has been on the property for seven years, were isolated incidents a year apart, the last of which was more than five months ago, and should not be considered a nuisance. The dog owners in the Outdoor Resorts case made a similar argument, which the arbitrator addressed as follows: The arbitrator does not agree with respondents that more incidents shoul d be required in the pet nuisance area because the premise underlying the argument-- that a few bites over a few years is insufficient--is repugnant to sound reasoning and is productive of an odious result. Maintaining a dog which may bite another or injure an intervening child or adult differs substantively from playing a stereo too loudly once a year. In the case of the former, the harm risked is much greater and deserving of a different analysis than the latter which may place at jeopardy an eve's good sleep once a year. Missing a night's sleep once a year is a function of community living whereas experiencing a bite a year is not; a dog barking and disturbing sleep once over the course of the year is not rationally likened to an only occasional bite which may threaten the life or safety of other lawful pets or persons. Outdoor Resorts at Long Key, Inc. v. Kelly, et al. Arb. Case No , Order on Motion for Rehearing (June 13, 1997). Accordingly, the argument in the present case that the dog only occasionally bites, and is not 1 In Barrwood, a dog attacked and bit a minor on the common area, property owned and controlled by the homeowner s association. The court held that the evidence was sufficient to allow a jury to determine whether the association was aware of the dog s vicious propensities, in determining the percentage of fault in 3

4 therefore a nuisance, is rejected. Ms. Finney further disputes the wording in the petition that her dog viciously attacked two individuals. She testified that, in both incidents, the dog nipped, the individuals involved. Her testimony also reflected, however, that both individuals required medical treatment and that she offered to pay the bills in both incidents. She argues that in both incidents, the dog was provoked. Ms. Finney testified regarding the first incident that she was walking her dog on a leash and attempted to warn off Fred, the roofing company employee, but that Fred nevertheless approached the Rottweiler and began to playfully bob its head back and forth in his hands, whereupon the dog, who was also playing, became excited and nipped Fred. In the second incident, she testified that she was exiting her fenced-in courtyard at the front of her unit while juggling an umbrella and the dog on a leash and did not see the actual bite. She presented the testimony of Lacey Westover, a nine-yearold girl who is Ms. Finney s next-door neighbor, who did not witness the incident, but testified that Ben and Jessica, a girl who was present, had told her that Ben punched the dog. An adult resident who did not witness the incident, Candy Buck, testified that Jessica told her that Ben struck the dog s head. The association presented the condominium vice president, Lee Harsha, who testified that he did not witness the incident, but that Ben told him that he stepped between the dog and Jessica, because the dog was going after Jessica, and that Ben was then bitten. Ben said that he hit the dog to get released. Both of these versions are hearsay, which are insufficient to independently support a finding of fact in these hearings. Rule 61B (5)(a), Florida Administrative Code. The competent evidence does not establish that the dog was provoked in either incident. Ms. Finney testified that she weighs 110 pounds and the Rottweiler weighs 98 pounds. She has two other dogs, both dachshunds, and she walks all three dogs together on the common elements. She also testified that neighborhood children come to her unit to play with the Rottweiler. The evidence as a whole a negligence action. 4

5 reflects that the dog may bite while playing and that Ms. Finney is not always able to control the Rottweiler and the situation sufficiently to prevent persons from approaching it. Ms. Finney s argument that the Rottweiler s actions should be excused due to provocation, is rejected by the arbitrator. Ms. Finney further points out that her Rottweiler has co mpleted obedience school and has not been classified as dangerous by the Pinellas County Department of Animal Services. These considerations, however, are not controlling as to whether the dog is a nuisance. A classification of dangerous is not necessary for the dog to amount to a nuisance. See, Outdoor Resorts, above, in which a dog which had not bitten any person was held to constitute a nuisance. Certainly the dog in the present case, which has bitten two individuals, would constitute a nuisance. Additionally, Ms. Finney s contention that the dog has not been classified as dangerous, which is a reference to a July 30, 1998, letter from the Department of Animal Services, an exhibit she presented, overlooks the continuing language in that letter, which recites in pertinent part: However, while circumstances do not cause your pet to fall into the dangerous category at this time, IT IS DEMONSTRATING SIGNS OF AGGRESSIVE BEHAVIOR THAT MAY CAUSE IT TO BE CLASSIFIED DANGEROUS IN THE FUTURE AND AN OPEN FILE WILL BE KEPT ON THE INVESTIGATION. You must make every effort to control your dog and be advised the file will remain open. (Emphasis as in original.) Certainly, a determination that the dog can be aggressive would militate in favor of its being considered a nuisance. Accordingly, Ms. Finney s argument that the dog is not a nuisance on the basis of the Department of Animal Services finding is rejected by the arbitrator. Ms. Finney further asserts that her Rottweiler should not be considered a nuisance because numerous small children in the condominium have played with him on a daily basis for many years. The arbitrator takes notice that several witnesses presented by Ms. Finney testified regarding the gentle nature of the dog. Such evidence, at first glance, might indicate that the dog should not be 5

6 considered a nuisance. Further consideration, however, indicates that the dog is capable of being unpredictable. Accordingly, it is held that the evidence that neighborhood children play with the dog is insufficient to establish that the dog is not a nuisance. Finally, Ms. Finney points out that the arbitrator may grant other just and equitable remedy under Rule 61B (5), Florida Administrative Code. She prays that the arbitrator, in the event that the dog is considered a nuisance, order that the dog be muzzled when he is outside the locked courtyard or unit, safeguards which she testified at the hearing she had already implemented. The arbitrator notes that, at the hearing, he notified the parties that the relief requested in the pet ition was that the dog be removed, and that whether the dog would go or stay was the question that the arbitrator was going to decide. The arbitrator indicated to the parties that other measures that they could agree to had not been pled, and would be appropriate for settlement discussions. The parties indicated that they would immediately commence such discussions. As noted above, no settlement has been reached in this case. The pleadings and evidence did not indicate that the association was willing to accept any measure short of the dog s removal. It is further noted that no evidence was presented of any rule regarding muzzles, nor was it established that the association has the means to monitor or enforce such a requirement, if such were instituted for the particular dog in question. Indeed, Mary Farri, the association president, testified that muzzling would not be sat isfactory to the association. In the Valencia Village case, above, the arbitrator noted that the dog owner had taken some steps to control the risk presented by her dog, including placing a muzzle on the dog, walking him on a training leash, and confining him to an upstairs bedroom when she was absent from her unit. The arbitrator nevertheless ordered removal of the dog, noting: However, there is no level of assurance that the dog will not escape from the house when its residents are coming and going; there is no assurance that the dog will not, purposefully or in error, be permitted to roam about the house when respondent is not at home; there is no assurance that the dog will not become agitated again by children or other pets (or men, which respondent explained the dog does not trust) when being 6

7 walked about the common elements. It is natural for children to want to play with large dogs, and Ms. Aloof testified that perhaps as many as 35 children live in the area. Valencia Village, Order Granting Motion for Emergency Temporary Injunctive Relief. In the present case, the appropriate remedy is that the dog be removed from the condominium property so that there will not be a risk that he will again bite. Based upon the foregoing, it is ORDERED: 1. Within 20 days from the date of this order, Ms. Finney shall permanently remove her Rottweiler from the condominium property and shall not permit the dog to enter the condominium property again. Florida. 2. In the future, Ms. Finney shall comply with article X of the declaration. DONE AND ORDERED this 8th day of January, 1999, at Tallahassee, Leon County, Tyler Powell, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO In accordance wit h Section , Florida Statutes, a part y adversely affected by this final order may appeal from the order by filing, within 30 days of entry of the order, a complaint for a 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 distri ct courts of appeal. 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, this 8th day of January, 1999, to: 7

8 Steven H. Mezer, Esq. Steven H. Mezer, P.A Court St., Ste. B Clearwater, FL Attorney for petitioner David C. Levenreich, Esq. 406 S. Prospect Ave. Clearwater, FL Attorney for respondent Tyler Powell, Arbitrator 8

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