STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION WIMBLEDON AT JACARANDA CONDOMINIUM NO.1, INC., Petitioner, v. Case No. 98-3427 JOANMARIE GORMLEY, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters the following order: Procedural History Petitioner alleges that respondent s dog exceeds twenty (20) pounds, in contravention of the declaration of condominium and the rules and regulations. On May 18, 1998, respondent filed her answer and affirmative defenses, including a selective enforcement defense. On June 9, 1998, petitioner responded to respondent s selective enforcement defense, arguing, among other things, that petitioner had sent violation letters to other unit owners with overweight dogs. Respondent was allowed to reply to petitioner s response and did so on July 23, 1998. She did not dispute the facts set forth in petitioner s response to her selective enforcement defense, except to allege that petitioner controls Phase VI of Wimbledon at Jacaranda Condominium Association No. 1
1 1 and has not taken enforcement actions against owners of overweight dogs who live there. Findings of Fact Petitioner alleges that respondent s dog weighs in excess of twenty (20) pounds, in contravention of Article VIII.D, paragraph 4 of the declaration of condominium, and Rule 16 of the rules and regulations. Article VIII.D, paragraph 4, reads: A unit owner may keep any domestic pet or animal on the condominium property so long as such domestic pet or animal does not constitute a nuisance and unreasonably interfere with the quiet enjoyment of the premises by the other condominium owners and provided further that such pet weighs less than 20 pounds. Rule 16 of the rules and regulations provides: No unit owner may keep any pet or animal on the condominium property except for household pets under 20 pounds in weight and so long as such pet or animal does not constitute a nuisance and interfere with the quiet enjoyment of the premises by the other condominium owners. The pets will be kept subject to the following regulations: (e) The owner will be permitted to keep such pet on the condominium property so long as such pet does not constitute a nuisance and interfere with the quiet enjoyment of the premises by the other condominium unit owners. 1 This argument is discussed in the Conclusions of Law section, p. 5. 2
In her answer, respondent admits that her dog weighs in excess of twenty (20) pounds and raises a selective enforcement defense, listing two dozen examples of dogs which exceed the twenty (20) pound weight limit, 2 including dogs residing in Phase VI of Wimbledon at Jacaranda Condominium No. 1. Petitioner rebuts respondent s selective enforcement defense, stating: 173, and 74. The eight units contained in Phase VI are not within the control of the Petitioner and, therefore, the Petitioner cannot control those units. Petitioner responds to the remaining 13 units as follows: a. At the Annual Membership meeting held on March 21, 1995, the membership voted to re-adopt Article [Rule] 16 concerning the weight limit of a pet. 89 of the 172 units voted in favor of the weight restriction, re-adopting the rule. A true copy of the minutes of the March 21, 1995 annual membership meeting are attached hereto as Exhibit A. b. Because the rules were re-adopted on March 21, 1995, two Units, units 231 and 76 already had dogs exceeding the weight limit and, therefore, were grandfathered in. c. With respect to Unit 200, the dog at issue weighs less than 20 lbs. d. With respect to the remaining 10 units, Petitioner is actively pursuing these violations. Attached as Composite Exhibit B are true copies of the violation letters sent to each of these unit owners. It is the Petitioner s intent to pursue these violations. As with the Respondent, Petitioner is allowing these unit owners a small leeway in time to have the dogs removed, given the sensitivity and nature of eviction of a pet from a household. Nevertheless, if the pets are not removed in a timely fashion, Petitioner will turn the 2 Including dogs in units 231, 76, 200, 261, 253, 251, 242, 228, 190, 181, 175, 3
matter over to its attorneys for further action. e. In addition to the units cited by the Respondent, there are several other units in violation of the pet restriction. To show the Petitioner s intent and actions to enforce the pet rule against all unit owners, Petitioner has attached as Composite Exhibit C additional pet restriction violation letters sent to individual unit owners. Petitioner s attached composite exhibit B consists of violation letters sent to the owners of each unit claimed to harbor an overweight dog, with the exception of units 200, 231, and 76. Most of these letters are dated March and April, 1998; three are dated May 26, 1998. In the instant case, respondent filed her answer and affirmative defense of selective enforcement on May 18, 1998. In her reply to petitioner s response to her selective enforcement defense, respondent argues that the three letters dated May 26, 1998 were written after respondent raised her selective enforcement defense and after the undersigned arbitrator ordered petitioner to respond to respondent s selective enforcement defense. Although this may be true, the bulk of the violation letters were sent out within two months of the filing of the instant petition on March 3, 1998. It is clear that petitioner is making a concerted, conscientious effort to achieve compliance with the twenty pound weight limit and has not singled out respondent. Conclusions of Law The fact that respondent is the only unit owner who, so far, has been served with a petition for arbitration does not constitute selective enforcement. The case law is wellsettled that an association may sue one owner to enforce a restrictive covenant and not sue another owner who has the same violation. See, Killearn Acres Homeowners Association, Inc. v. Keever, 595 So. 2d 1019 (Fla. 1st DCA 1992). In Killearn, nine 4
homeowners other than Keever erected satellite dishes without association approval. Eight were in the owners backyards, and the association decided not to take any action against these owners. The ninth owner s satellite dish was located in the side yard similar to Keever s, and the association decided to...seek enforcement of the covenant depending upon the outcome of the instant case. Id. at 1021. The court held that evidence of such inaction against the ninth owner, whose violation was similar to Keever s, was...subject to challenge pending the outcome herein... Id. at 1022. Petitioner s initiation of efforts to achieve widespread compliance with the twenty pound weight limit clearly demonstrates that there is no intention to selectively enforce the restriction against respondent. Therefore, respondent s selective enforcement defense is stricken. In her answer and in her reply, respondent also argues that dogs in excess of twenty pounds reside in Phase VI of Wimbledon at Jacaranda, but no enforcement is being taken against these dogs owners. Documentation submitted by respondent, including copies of the rules and regulations of Phase VI, support petitioner s contention that it has no control over the eight units in Phase VI which may harbor overweight dogs. The condominium association established for Wimbledon at Jacaranda Condominium No. 1 - Phase VI is specifically described as being independent of, but affiliated or associated with, Wimbledon at Jacaranda Condominium No. 1, Inc. (Emphasis added). Moreover, in a resolution passed at a meeting of the board of directors of Wimbledon at Jacaranda Condominium No. 1, Inc., held on December 5, 1979, it was resolved that the 4.7 acres which comprise Phase VI shall be allowed to form a separate condominium association to be known as Wimbledon at Jacaranda 5
Condominium No. 1 - Phase VI. Therefore, since petitioner is not the association which governs Phase VI, respondent s selective enforcement defense vis a vis the overweight dogs residing in Phase VI is stricken. As a final matter, in the undersigned arbitrator s order dated July 10, 1998, the erroneous conclusion was reached that striking of respondent s selective enforcement defense would result in this case proceeding to final hearing on the issue of whether respondent s dog constitutes a nuisance. In fact, no final hearing is necessary in the instant case, as respondent admits that her dog exceeds the twenty pound weight limit, in contravention of the declaration and rules and regulations, and her only defense has been stricken. Thus, removal of the dog is warranted under these facts alone, and a determination of whether the dog also constitutes a nuisance is not necessary. WHEREFORE, respondent shall remove the subject dog from the condominium property with forty-five (45) days of the date of this order. Respondent shall in the future comply with Article VIII.D, paragraph 4 of the declaration of condominium, and Rule 16 of the rules and regulations. DONE AND ORDERED this 28th day of July, 1998, at Tallahassee, Leon County, Florida. Donna La Plante, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1030 6
RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO 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. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Marvin P. Pastell II, Esq., Becker & Poliakoff, P.A., 3111 Stirling Road, P.O. Box 9057, Fort Lauderdale, FL, 33310-9057, and Joanmarie Gormley, 222 Wimbledon Lake Drive, Plantation, FL, 33324 on this 28th day of July, 1998. 7
Donna La Plante, Arbitrator 8