STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Ocean Club Townhomes at Jupiter Condominium Association, Inc., Petitioner, v. Case No. 01-2593 Robert Spiegel, Respondent. / follows: FINAL ORDER Comes now, the undersigned arbitrator, and hereby enters this final order as Procedural Statement The association filed its petition in this matter on March 6, 2001. The association alleged that the respondent s dogs are a nuisance based on their barking and menacing behaviors, are allowed to roam on the common elements, and soil the property, and regardless of the foregoing offenses, exceed the 50 pound limit contained in the documents. The petition also alleges that the respondent installed nonconforming railings on his balcony, replaced the glass portion of his garage door with nonconforming glass and patterns in a different color, changed the exterior light without permission of the association, and that respondent engages in activities that constitute a nuisance. The final hearing in this matter commenced via telephone conference on 1
October 22, 2001, and was concluded on November 13, 2001. The parties called a number of witnesses and offered a number of documents into evidence. This final order is based on the totality of the testimony and other evidence presented. Where there was conflict in the testimony, the findings of fact determined herein are based on the credibility of the various witnesses. There are 5 units contained in this condominium. Mr. Spiegel is the only owner who is not currently on the board of administration. Mr. Spiegel purchased his unit from the original developer at a distress auction. The Dogs Mr. Spiegel owns 2 Dobermans each of which exceed 50 pounds. The dogs prior to the time of the commencement of this proceeding were allowed to freely roam about the common elements without the benefit of a leash. After this proceeding commenced, the dogs have not been seen without a leash regularly on the common elements. The dogs have never actually threatened any unit owner but are very intimidating in appearance. They have ventured into the garages of the unit owners when the owners were present and have caused fear in the owners. When inside the unit, the dogs bark at times and disturb the adjoining unit owners. When allowed to roam on the common elements without a leash, the dogs have inevitably soiled the common elements. Based on the totality of the evidence presented, it is concluded that the dogs do not currently appear on the common elements without a leash. Also, the dogs do not currently constitute a nuisance. While they bark, there was no evidence presented that they bark more than any other dog, or that their barking significantly 2
impairs the ability of the owners to use and enjoy their units or the common elements. The fact that the dogs no longer enjoy unchaperoned access to the common elements has also diminished the potential nuisance value of the dogs. The respondent stipulated that his dogs weigh in excess of 50 pounds. There was no evidence that there are other dogs in excess of 50 pounds on the property. A different smaller dog was shown to on occasion wander on the common elements without a leash but in response to requests of the association, the other owner has tethered her dogs. The arbitrator finds that the documents were violated by respondent through his keeping of dogs in excess of 50 pounds. For this reason alone, respondent is required to remove the dogs unless exempted by the defenses of waiver or estoppel; the dogs must be removed on the basis of their size and weight alone unless some countervailing defense is shown to apply. There was no showing of selective enforcement defense that would otherwise excuse the respondent from complying with the weight restriction contained in the documents. Selective enforcement requires that the other violations shown by the respondent be closely related to the violation sought to be addressed in the instant case. See, for example, MacClary v. Carlton Towers Condominium Association, Inc., Arb. Case No. 94-0355, Final Order (February 27, 1995), in which the arbitrator ruled that where the association sought to remove a dog that exceeded the maximum weight restrictions, the fact that the association did not attempt to remove illegal cats and birds from the condominium did not establish selective enforcement. There is no selective enforcement shown in this case. 3
Much testimony was tendered regarding whether the developer approved respondent s pets prior to respondent purchasing his unit. The association provided testimony from an employee (Ms. Thiel) of the developer corporation providing that the developer did not approve of the pet violation prior to the purchase of the unit. The respondent himself did not unequivocally testify that the developer actually approved the pets or waived the restriction, but only that the developer was aware that respondent wanted to bring his dogs into the unit and failed to object. There was insufficient evidence to conclude that waiver of the pet restriction was a condition of the sale of the unit. Certainly there was nothing in writing granting respondent permission to bring the dogs into the unit, and there was a lack of evidence regarding any agreement at all. Respondent was aware of the pet restriction at the time of the purchase of the unit, and at a subsequent time when the association approached Speigel in an effort to obtain his vote as a unit owner on the matter of adding additional property to a phase of the condominium, respondent declined to provide approval unless the board, then under the control of the owners other than the developer, would agree that he could keep his dogs. In a certain sense, though not dispositive herein, this tends to undermine respondent s position that he always believed he had been granted an exemption from the pet restrictions. Based on the foregoing, respondent has failed to prove that the developer affirmatively approved his possession of the two Dobermans, or that he had the permission of the developer to keep the dogs. Moreover, the developer did not have the authority based on the documents to grant exemptions from the pet restrictions. It also was not shown as a general matter that the association, either under 4
developer control or under the control of the owners failed in general to enforce the pet restrictions regarding weight, thereby requiring the association to grandfather-in existing pets. In sum, there is no basis to find waiver or estoppel. If there had been any reliance on statements of the developer, the arbitrator finds that any such reliance was unreasonable, given the plain language of the documents prohibiting large pets. Whether Respondent himself is a Nuisance. Next, the association alleged that respondent himself has created a noise nuisance in his unit. Testimony established that respondent has in the past on occasion struck a punching bag at night and played a bass instrument or his electronic drums late at night that resulting in a thumping vibration resonating throughout the building. However, the association did not meet its burden of showing that such noises have substantially interfered with the property rights of the other residents. There was virtually no evidence of any recent disturbances. Respondent uses a headset while playing his drums and the punching bag is located in the garage where it has less probability of interfering with owners in the use of their units. Acknowledging that these instrumentalities are capable of producing nuisance conditions, and while respondent should use the drums and punching bag consistent with his obligation to be respectful of the other residents, there is no substantial evidence to find that he is currently producing nuisance conditions, or that he ever produced these conditions in the past. No relief will be entered in favor of the association on this count but respondent shall conduct himself in a respectful manner while on the condominium property. 5
Unapproved Modifications The association next alleges that the respondent installed nonconforming and unapproved features on the common elements including the railing on his balcony, an exterior light, and a glass panel on the garage door. Regarding the garage door alteration, the evidence showed that the respondent initially and without prior approval from the board changed the window in his garage door. When the association demanded its removal, respondent modified the window in an effort to restore its original design and appearance. The subsequent modification performed by respondent in response to the objections of the association closely resembles the original design and construction, and the parties essentially did not disagree through their testimony that affirmative relief is no longer needed in connection with the garage door. Regarding the exterior light fixture, respondent removed the original fixture and similarly replaced it with a nonconforming light fixture. The replacement fixture was oval and in no wise matched or approximated the earlier fixture. In response to the protests of the association, Mr. Speigel replaced the light with one that conformed somewhat to the original lamp. However, the replacement light differs in several respects from the original equipment. Both lights resemble antique carriage lights, but the respondent s current fixture has a bulbous knobby area protruding from the bottom support stem while the original equipment is not so adorned. The cover or top of respondent s light is rounded while the other lights are square. The glass in the respondent s ornament is clear while the association globes are beveled and cut in an effort to diffuse the light emitted from the bulb. The respondent s light is 6
crème colored while the association design is a flat white color. The differences between the two, although not shocking, appear significant enough to warrant entry of an order requiring respondent to locate a more suitable replacement. The final issue concerns respondent s nonconforming balcony rails. In essence, when the respondent was in the planning phase for adding balcony rails to his patio, he approached owner/board member Elaine Mordas who had previously installed railings on her patio. She informed Mr. Spiegel on behalf of the board and with the approval of the board that he could install railings, but that they must conform exactly to the specifications of her railings. She permitted the respondent to borrow her own specifications and drawings, and when the respondent constructed his balcony railings using the same contractor as she had earlier utilized, he built the railings to the exact specifications she had provided. However, as was developed in the testimony, when she had built her own railings, she had failed to follow her own specifications, for whatever reason. Her balcony features 6 vertical support beams distributed equally along the horizontal railing material, while respondent s balcony features only 5 vertical support posts as is shown in the plans and specifications. Obviously, respondent relied on the advice and diagrams given to him by board member Ms. Mordas. The board cannot now be heard to complain that the balcony does not conform to specifications approved by the board. Respondent did literally everything within his means to ensure that the board edicts in this respect were pursued, and the association must bear the penalty for it miscommunication. The respondent will not be penalized. The association is estopped from now changing its position. In any event, it cannot be said that the absence of one vertical rail as a 7
whole in this condominium with its variable and nonconforming appearance constitutes either a material alteration to the common elements or a material deviation from Ms. Mordas balcony. WHEREFORE, it is ruled that respondent must permanently remove his oversized dogs from the condominium within 30 days hereof. Respondent must remove the nonconforming light and replace it with one that more closely conforms to the original design within 30 days hereof. Respondent is not required to modify his balcony railings. DONE AND ORDERED this 20 th day of December, 2001, at Tallahassee, Leon County, Florida. Karl M. Scheuerman, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 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 20 th day of December, 2001: Steven M. Selz, Esquire 214 Brazilian Avenue, Ste. 210 Palm Beach, Florida 33480 V. Donald Hilley, Esquire 11382 Prosperity Farms Road, Ste. 124 Palm Beach Gardens, Florida 33410 8 Karl M. Scheuerman, Arbitrator
Right of Appeal In accordance with s. 718.1255, F.S., this final order may be appealed by filing, within 30 days of the rendition and mailing of this order, a petition for trial do novo in a court of competent jurisdiction located in the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. 9