STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SUNRISE LANDING CONDOMINIUM ASSOCIATION OF BREVARD, INC., Petitioner, v. Case No. 2005-03-4083 JILL E. WILSON and NELVA L. WILSON, Respondents. / SUMMARY FINAL ORDER This Summary Final Order is entered pursuant to Rule 61B-45.030(3), Fla. Admin. Code, which provides that [a]t any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. BACKGROUND The Sunrise Landing Condominium Association of Brevard, Inc., (petitioner or association) filed a petition for arbitration on June 23, 2005, naming Jill and Nelva L. Wilson as the respondents. The petition alleges that the animals maintained by the respondents in their unit constitute a nuisance. The petitioner alleges that the respondents have one or more cats that are a nuisance because the respondents do not clean the litter box; that a dog in the unit exceeds the 29-pound weight limit and the respondents do not clean up after him; and 1
the birds in the unit are nuisances because they have been allowed to damage the unit and/or common elements by pecking or eating the wood structure of the condominium. Along with the petition, the petitioner filed a Motion for Emergency Relief seeking access to the respondents unit to assess the damage caused by the birds and an order requiring the caging of the birds pending the outcome of the arbitration action. An Order Requiring Answer was entered as to the petition, and the respondents were ordered to show cause why the Motion for Emergency Relief should not be granted. On July 17, 2005, the respondents filed their answer to the petition, which was also their response to the show cause order. In the answer, the respondents contended that the birds that did the damage have not been in the unit for approximately a year and a half and that the birds that are presently in the unit are small, domesticated conures that stay on their cages when freed and have clipped wings. Respondents stated that the cat litter was changed regularly. Respondents did not deny that the dog was over the 29-pound weight limit, but alleged that he had broken his restraints only twice and was not a nuisance. The respondent also mentioned that Jill Wilson was disabled and that her doctor prescribed a dog for her protection. On July 28, 2005, an Order Granting Emergency Relief was entered allowing inspection of the unit and requiring that the birds remain caged throughout this proceeding. The order directed the petitioner to file a status report after the inspection and state whether this matter was moot as to the allegations against the birds and the cat. The respondents were directed to supplement their answer with any defense they 2
might have to the requirement that dogs weigh 29 pounds or less. The respondents did not supplement their answer. On August 19, 2005, after the inspection, the petitioner filed its status report. In the status report the petitioner stated that there was only one old frail cat in the unit at the time of the inspection and that the litter box was clean. There was damage to the unit caused by the birds, although it was unknown whether the current birds were responsible for the damage. The status report also stated that the respondents asserted that they had doctors notes stating that the dog was a reasonable accommodation for Ms. Jill Wilson s disability. On August 30, 2005, and September 6, 2005, a case management conference was held by telephone conference call. Almost all issues were resolved. The respondents agreed to a summary final order requiring the birds to be kept in their cages at all times, other than for necessary medical care and grooming, and requiring the birds to be removed from the unit temporarily while the unit is sprayed for bugs. Respondents admitted that certain areas of the unit had been damaged by the birds that had previously been in the unit, and respondents agreed that the areas damaged by the previous birds should be repaired by the respondents. The issue regarding cat and the odor from the litter box was determined to be moot. By the end of the conference call, the only issue remaining unresolved involved the dog and a possible fair housing defense by the respondents. The respondents admitted that the dog weighs more than the weight limit. However, respondents asserted that the dog was a reasonable accommodation for Ms. Jill Wilson s disabilities, both her hearing disability and her psychological disability. Since this defense had not 3
been properly plead in the respondents answer, the respondents were given until September 20, 2005, in which to amend their answer to allege facts establishing a Fair Housing defense. Respondents were advised that they must include allegations establishing that Ms. Wilson has a disability and that the dog is a reasonable accommodation that is necessary to afford Ms. Wilson an equal opportunity to use and enjoy her unit. The respondents were also told to attach to the amendment copies of any documents supporting the defense. The respondents have failed to file an amendment to the answer or any other documents or material. The respondents have been given two opportunities to allege an appropriate fair housing defense and have failed to do so. Since the dog was the only remaining disputed issue, and since the respondents have failed to allege any facts that would support a fair housing defense, there are no factual issues to be resolved, and the entry of a summary final order is appropriate. FACTS 1. The respondents, Jill and Nelva Wilson, are the owners of Unit 102 at Sunrise Landing I, A Condominium. When the respondents purchased their unit, they agreed to comply with the condominium documents, which include the declaration of condominium, articles of incorporation, bylaws, and rules and regulations. The petitioner is the condominium association responsible for the operation of the condominium, and is authorized to bring an action to compel compliance with the condominium documents. 2. Article XXXI of the declaration of condominium, entitled Pets and Occupancy, provides as follows: 4
No pet or animal shall be kept or harbored in the Condominium Property or within the confines of the Condominium Unit, without the prior written consent of the Association. Provided, however, domesticated cats, domestic fish, or domestic birds may be kept in any Unit in the building as long as the pet is confined to the interior of the Unit and subject to the matters hereafter stated. No canine that is not domesticated or that weighs in excess of twenty-nine (29) pounds shall be permitted on the Condominium Property at any time. No pet or animal shall be maintained or harbored within a Condominium Unit that would create a nuisance to any other Unit Owner. 3. The respondents maintain several birds, a cat, and a dog in their condominium unit. The dog weighs in excess of 29 pounds. 4. The respondents have had different birds over the course of the years. The larger birds, which are no longer present in the unit, were allowed to fly freely around the unit and porch and damaged the exposed wooden beams and trim. The respondents admit that they are responsible for repairing the damage caused by the birds. However, to ensure that no further damage to the wood in the unit or common elements can occur, the respondents agreed to keep the remaining birds in their cages. 5. The petitioner, in its status report, claimed that the birds were a nuisance because they were causing a roach infestation of the premises. During the case management conference, the association explained that, with the birds in the unit, the unit cannot be sprayed for bugs, which causes a bug problem. The respondents agreed to remove the birds to the porch and spray for bugs or get a bird-safe bug spray designed to be used in areas where birds are located. Further, roach tablets are an effective way of controlling roaches without harming the birds. The birds cannot be found to be a nuisance based on roaches or other bugs being in the unit. There is no direct relation between the birds and the bugs being in the unit. 5
6. The respondent s cat is very old and is not a nuisance. If there were any odors coming from the cat s litter box, they had been eliminated by the time of the inspection. The respondents will continue to maintain the litter box in a clean and sanitary condition. CONCLUSION Based on the foregoing, it is ORDERED: 1. The respondents shall have ten (10) days in which to remove their dog from the unit. The dog weighs over the 29-pound weight limit, and the respondents failed to present any affirmative defense that would allow the dog to remain on the premises despite the prohibition in the declaration. The respondents shall use the ten days to make the necessary arrangements to ensure that the dog has been permanently removed from the condominium property eleven days (11) from the date of this order. 2. The respondents shall keep the birds in their cages at all times while on the condominium property, except for necessary grooming, medical care, or transferring a bird from one cage to another. 3. The respondents shall repair all of the damage caused by their birds within 30 days from the date of this order. After 30 days, or at the invitation of the respondents if the repairs are completed earlier, the petitioner shall have the right to inspect the unit to ensure that the damaged wood has been repaired or replaced. The petitioner shall arrange for a mutually agreeable inspection date or, if one cannot be arranged, provide at least 72 hours notice of the inspection. 6
4. The respondents shall immediately take appropriate steps to eliminate the roaches that may be in their unit. The respondents may use a bird-safe pesticide, or remove the birds from the unit while spraying, or use roach tablets to eradicate the bugs in the unit. After fifteen (15) days and upon the request of the association, the respondents shall inform the association of the steps taken by the respondents to eliminate the bugs. DONE AND ORDERED this 6 th day of October, 2005, at Tallahassee, Leon County, Florida. Diane A. Grubbs, Arbitrator Dep t of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 7
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 6th day of October, 2005: James E. Olsen, Esquire Wean & Malchow, P.A. 646 E. Colonial Drive Orlando, Florida 32803 Attorney for Petitioner Jill E. and Nelva Wilson 7200 N. Highway 1, Unit 102 Cocoa, Florida 32927 Respondents Diane A. Grubbs, Arbitrator Right to Appeal As provided by section 718.1255, F.S., a party who is adversely affected by this final order may, within 30 days of the entry and mailing of this final order, file a complaint for a trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located. This order does not constitute final agency action and cannot be appealed to a district court of appeal. Attorney s Fees and Costs As provided by section 718.1255, 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- 45.048, 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-45.048, F.A.C. 8