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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Lakeside Condominium Association No. 3, Inc., Petitioner, v. Case No Barbara Weinberg, Respondent. / SUMMARY FINAL ORDER Procedural History On September 19, 2008, Lakeside Condominium Association No. 3, Inc. (the association) filed a petition for mandatory nonbinding arbitration naming Barbara Weinberg as the respondent. The petition alleged that the respondent was maintaining a dog in her unit in violation of the condominium s governing documents. The petition further alleged that the respondent s maintenance of the dog constituted a nuisance because it barked incessantly, the respondent permitted it to run loose on the condominium property and failed to clean up its waste. On November 4, 2008, the respondent filed an answer. In her answer the respondent claimed that she was entitled under Federal, State and local law to keep the dog as an emotional support animal. The respondent stated that she had filed a housing discrimination complaint with the Palm Beach County Office of Equal Opportunity (Palm Beach County OEO). 1

2 Because the respondent had filed a housing discrimination complaint, by order dated October 13, 2008, this matter was administratively closed pending resolution of the housing discrimination complaint. On April 1, 2009, the association filed a motion to reactivate the case along with a motion for full or partial summary disposition. On June 2, 2009, the respondent filed a response to the association s motion. The association attached to its motion a copy of the Palm Beach County OEO s Determination of No Reasonable Grounds. The undersigned hereby takes official notice of the ruling. The Palm Beach County OEO concluded that the respondent had not demonstrated that she was entitled to keep the dog as an accommodation under the Fair Housing Act and other applicable laws. The respondent has not indicated that she has appealed the Palm Beach County OEO s decision. Accordingly, the housing complaint has been resolved and it is appropriate to reactivate this case. There are no material issues of fact in dispute. Therefore, in accordance with Fla. Admin. Code R. 61B , it is proper to summarily rule in this matter. Findings of Fact 1. Lakeside Condominium Association No. 3, Inc. is the corporate entity responsible for the operation of Lakeside Condominium No. 3 of Banyan Springs. 2. The respondent owns unit 202 at the condominium. 3. Respondent is keeping a dog in her unit. 4. The respondent originally made a demand in 2007 to keep the dog as an accommodation under the Fair Housing Act for her husband, Jack Weinberg, who suffered from Alzheimer s disease and dementia. While considering the request, the association did not insist on removal of the dog. 2

3 5. The respondent s husband died in February Thereafter, the association requested that the respondent remove the dog. 6. On November 5, 2008, the respondent filed a complaint with the Palm Beach County OEO alleging that she was injured by a discriminatory act in that the association failed to permit her to keep her dog as an accommodation for a handicap. 7. On March 20, 2009, the Palm Beach County OEO issued a Determination of No Reasonable Grounds. The ruling stated: Complainant has not demonstrated that she is entitled an accommodation under the Fair Housing Act and other applicable laws. Despite several written requests from Respondent [the association] and OEO for clarification of Complainant s alleged disability and need for an accommodation, Complainant has failed to provide the information to establish that she suffers from a disability as defined by the applicable laws and has failed to demonstrate that she needs the dog as a reasonable accommodation for her alleged disability. THEREFORE, there is no cause to believe that Complainant has been discriminated against as alleged. Conclusions of Law Lakeside Condominium No. 3 of Banyan Springs is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the parties and subject matter of this dispute pursuant to section , Florida Statutes. Respondent, by her ownership of a unit at the condominium, is required to comply with all governing condominium documents. Section of the declaration of condominium states, No animal or pets of any kind shall be kept in any unit or on any property of the Condominium. The respondent is maintaining a dog in her unit in violation of this section. In her answer, the respondent alleged that the dog was a necessary accommodation for a handicap under federal and state law. The respondent was given 3

4 an opportunity to establish such entitlement by filing a housing discrimination complaint with the Palm Beach County OEO. The Palm Beach County OEO concluded that the respondent had not demonstrated that she was entitled to keep the dog as an accommodation under the Fair Housing Act and other applicable laws. Clearly, the respondent has failed to establish any entitlement to the dog under federal or state law that would permit her to keep the dog in spite of the governing document s pet prohibition. Accordingly, it is found that by keeping a dog in her unit the respondent violated section of the declaration of condominium. The association is not prohibited from demanding the removal of the dog. As this is determinative of this matter, the association s allegation that the dog creates a nuisance does not need to be addressed. Based upon the foregoing, it is ORDERED: Within thirty days of the date of this order, the respondent shall permanently remove her dog from her unit and the condominium property. DONE AND ORDERED this 3 rd day of August, 2009, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: Facsimile:

5 Certificate of Service I hereby certify that a true and correct copy of the foregoing order has been sent by U.S. Mail to the following persons on this 3 rd day of August, 2009: Robert Burr, Esq. St. John, Core & Lemme, P.A Forum Place, Suite 701 West Palm Beach, FL Barbara Weinberg Mangrove Drive Unit 202 Boynton Beach, FL James W. Earl, Arbitrator 5