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 Fairways at Emerald Greens Condominium Association, Inc., Petitioner, v. Case No Pamela Goetten, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Land Sales, Condominiums, and Mobile Homes convened a formal hearing in this case on December 20, During the hearing, the parties presented the testimony of witnesses, tendered documents into evidence and cross-examined the other party s witnesses. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: For Respondent: Alfred F. Gal, Jr., Esq. Samouce, Murrell & Gal, P.A. 800 Laurel Oak Drive Suite 300 Naples, Florida Pamela Goetten, pro se 1098 Woodshire Lane Unit H-106 Naples, Florida

2 PRELIMINARY STATEMENT On May 12, 2004, The Fairways at Emerald Greens Condominium Association, Inc. (the association) filed a petition for arbitration naming Pamela Goetten as the respondent. The petition alleges that the respondent is maintaining a dog in her unit in violation of article 15.9 of the declaration of condominium. The respondent has not denied that she is maintaining a dog in her unit; rather, she relies upon the defense of selective enforcement and a defense based upon necessity/extenuating circumstances. On August 10, 2004, the respondent filed supplemental information in support of her defense of selective enforcement indicating that dogs are being maintained at units #C-201, #A-209 and #H-103. This matter was referred to mediation on August 4, 2004, which resulted in an impasse. Both parties elected to continue with arbitration with the association electing binding arbitration and the respondent non-binding arbitration. As both parties elected to continue with arbitration, the undersigned directed that the arbitration proceed forward as non-binding arbitration pursuant to section , Florida Statutes. A hearing was held on December 20, 2004, at the law offices of the association s attorney. The arbitrator appeared via telephone. The parties were given until January 20, 2005, to file proposed orders. Both parties have filed recommend orders in this matter. FINDINGS OF FACT 1. The respondent is the record unit owner of unit #H-106, Woodshire Lane, Naples, Florida, located at The Fairways At Emerald Greens Condominium (the condominium). 2. The respondent acquired title to her unit on November 13,

3 3. The Fairways at Emerald Greens Condominium Association, Inc., is the entity responsible for the administration and operation of The Fairways at Emerald Greens Condominium. 4. The Respondent is the owner of a dog that she has maintained in her unit at all times relevant to this matter. 5. Section 15.9 of the declaration of condominium, as amended December 15, 1997, provides, in pertinent part: No person may keep or harbor a living pet of any kind or description anywhere in the condominium. This prohibition does not apply, however, to any unit owner who acquired title to his unit and was keeping a permitted pet or pets at the condominium on or before December 11, 1997, who shall be deemed grandfathered. 6. The dogs currently being kept in units #A-209 and #C-201 were owned prior to December 11, The dogs in these units are designated as grandfathered on a list maintained by the association. 7. The dog maintained in unit #H-103 was grandfathered subject to a weight restriction. 1 Initially, the unit owner submitted a veterinarian certificate indicating that the mixed-breed dog did not violate the weight restriction. However, since the association became aware that the dog exceeded the weight restriction, it has taken action against the unit owner to remove the dog. 8. The association has taken action to remove various other pets, which were being kept in violation of the declaration. 9. The respondent is being stalked and fears for her safety. 10. The respondent has an alarm system in her unit. 1 Pursuant to article 15.9 of the declaration, grandfathered pets may not exceed 25 pounds in weight. 3

4 11. The respondent is maintaining the dog for self-protection reasons. However, the dog has not been professionally trained for such purposes. CONCLUSIONS OF LAW The Fairways at Emerald Greens Condominium is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the parties of subject matter of this dispute, pursuant to section , Florida Statutes. Article 15.9 of the declaration of condominium prohibits the keeping of pets at the condominium, unless the unit owner acquired title to her unit and was keeping a permitted pet or pets at the condominium before December 11, It is not disputed that the respondent is maintaining a dog in her unit and that the dog is not eligible for grandfathering. Accordingly, the undersigned finds that the respondent has violated section 15.9 of the declaration. The respondent contends that the association should be prohibited from enforcing the pet restriction because it is selectively enforcing the provision and that she needs the dog due to necessity and extenuating circumstances. The respondent also submitted a petition signed by other unit owners in support of her maintaining the dog and presented the testimony of witnesses indicating that the dog is not a nuisance. If the popular sentiment of the members of the association is to permit pets, such intent may be properly effectuated by amending the condominium documents in accordance with the applicable provisions of the condominium documents and the condominium act. Additionally, the testimony that the dog is not a nuisance is irrelevant, as the petition does not allege that the dog constitutes nuisance. 4

5 To prove the defense of selective enforcement, a party has to show that there are instances of similar violations of which the governing body has notice, but on which they have refused to act. See White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979); see also Killearn Acres Homeowners Association, Inc. v. Keever, 595 So.2d 1019, 1021 (Fla. 1st DCA 1992); and, Camelot II Condominium Assn., Inc. v. Dirse, Arb. Case No , Final Order (May 10, 2001). The respondent bears the burden of proving her affirmative defense. Sea Breeze South Apartments Condo., Inc. v. Beck, Arb. Case No , Final Order (May 17, 2002). The respondent has failed to establish that the association is selectively enforcing the pet restriction. The pets referenced by the respondent either are grandfathered pursuant to the pet restriction or the association is presently taking action against them. Furthermore, the testimony of the association s president indicates that when the association becomes aware of a violation it takes action to correct the violation. The respondent also claims that she needs to maintain the dog for personal protection because she is being stalked by a person. The dog apparently warns of anyone approaching the respondent s unit and she takes the dog with her on walks around the neighborhood for protection. It is not disputed that the respondent fears the person stalking her. However, security concerns have not been accepted as justification to violate an otherwise legitimate pet restriction, as self-help measures are not a recognized defense to claims of violation of condominium documents. Camelot Two Condominium Association, Inc. v. Dirse, Arb. Case No , Case Management Order and Order Setting Final Hearing (April 9, 2001)(respondent s defense that maintaining a dog in violation of pet restriction was necessary for security reasons was rejected by the 5

6 arbitrator); Chateau Chaumont of Ibis Isle Association, Inc. v. William, Arb. Case Nos & , Case Management Order (August 16, 1994)(lack of security is not a valid defense to a claimed pet restriction violation). Furthermore, the undersigned notes that respondent s dog is not trained as a guard dog, that the respondent has not shown that her unit s alarm system fails to afford sufficient protection and that there are no other means of protection reasonably available to her that would not violate the condominium documents. Accordingly, the undersigned rejects the defense of necessity/extenuating circumstances based upon the respondent s security concerns. Based on the testimony of the witnesses and documents tendered into evidence, the arbitrator finds that the respondent has violated article 15.9 of the declaration of condominium by maintaining a dog in her unit. The respondent has not established any affirmative defense that would prevent enforcement. 6

7 RELIEF, ORDER AND REMEDY The respondent has violated article 15.9 of the declaration of condominium by maintaining a dog in her unit. Within thirty (30) days of the date this order, the respondent shall permanently remove the dog from her unit. The respondent shall comply with article 15.9 of the declaration at all times in the future. Wherefore the respondent shall comply with the terms set forth above. DONE AND ORDERED this 2 nd County, Florida. day of February 2005, at Tallahassee, Leon James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 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 FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY 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 ATTORNEY S FEES AS PROVIDED BY SECTION , 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 (1), F.A.C., REQUIRES THAT A PARTY SEEKING AN AWARD OF COSTS AND ATTORNEY'S FEES MUST REQUEST THE AWARD IN WRITING PRIOR TO THE RENDITION OF THE FINAL ORDER. RULE 61B (2), REQUIRES THE PREVAILING PARTY SEEKING AN AWARD OF COSTS AND FEES TO FILE A MOTION SEEKING THE AWARD NOT LATER THAN 45 DAYS AFTER THE RENDITION OF THE FINAL ORDER. THE TIMELY FILING OF AN APPEAL FOR TRIAL DE NOVO OPERATES TO TOLL THIS 45-DAY PERIOD WHEREBY THE MOTION MUST BE FILED WITHIN 45 DAYS FOLLOWING THE CONCLUSION OF THAT APPEAL OR ANY SUBSEQUENT APPEAL. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 2 nd day of February 2005: Alfred F. Gal, Jr., Esq. Samouce, Murrell & Gal, P.A. 800 Laurel Oak Drive Suite 300 Naples, Florida Pamela Goetten 1098 Woodshire Lane Unit H-106 Naples, Florida James W. Earl, Arbitrator 8