STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Royal Stewart Arms Condominium No. 5, Inc., Petitioner, v. Case No. 2013-04-7257 Arnold V. Dano and Rosalin L. Dano, Respondents. / FINAL ORDER OF DISMISSAL On November 19, 2013, Royal Stewart Arms Condominium No. 5, Inc. (the Association) filed a Petition for Mandatory Non-Binding Arbitration naming Arnold V. Dano and Rosalin L. Dano as Respondents (Respondents). In pertinent part, the petition alleges: (1) The Amended and Restated Declaration of Condominium for Royal Stewart Arms Condominium #5 as amended, prohibits pets, except for small birds and fish. (2) Unit owner, Arnold Dano[,] acquired a dog as a service/support animal pursuant to the Fair Housing Act that has resided with Mr. Dano in the condominium unit since early in 2013. (3) There is only one other service dog in Royal Stewart Arms Condominium #5, and this dog and unit owner only occupy their unit part time. (4) Since March of 2013 to present Respondent s service/support animal has been the basis of unit owner complaints for excessive barking, running loose in the hallways of the condominium, and most importantly, for relieving itself in the hallway, elevators and other building areas of the condominium, after which the Respondent fails to clean and properly dispose of the waste. 1
On February 11, 2013, the Association s board of directors (board) adopted a resolution entitled, Royal Stewart Arms Condominium No. 5, Inc. Corporate Resolution 2013-01 Regarding Emotional Support/Service Animals. In pertinent part, the resolution states: WHEREAS, the Association has a restriction prohibiting pets; and WHEREAS, the Board acknowledges that in certain instances Federal and Florida law may require that a reasonable accommodation be granted to an individual with a disability to allow such disabled individuals to have an animal despite the no pet policy; and WHEREAS, the Board wishes to adopt a uniform policy and registration form to be completed by any owner requesting he or she be allowed to have an animal as a reasonable accommodation and the Board will review same, along with any documentation provided to substantiate the need for the requested accommodation, and WHEREAS, the Board wishes to further clarify the restrictions that will pertain to reasonable accommodation animals, unless there is a compelling reason why such restriction(s) should not apply in a particular instance; and WHEREAS, the board has carefully considered and approves the following rules and regulations pertaining to emotional support/service animals allowed as a reasonable accommodation to a disabled individual given that there are no rules in place since the Association does not allow pets.... 1. The above findings of fact are hereby incorporated into this Resolution. 2. Animal owner shall be required to provide initial documentation from his or her treating health care professional and an update on an annual basis to substantiate the continuing need for the animal, unless the disability is clearly indicated by the health care professional as a permanent condition that cannot be rehabilitated (see attached sample letter). 3. Animal owner shall annually complete, sign and submit the uniform registration form adopted by the Board from time to time to indicate that he or she still owns the animal, his or her acknowledgement of these rules, that required vaccinations and licensing are current and an updated photograph of the animal (see attached form). 4. The above two items of documentation shall be provided to the Board for review before the animal is introduced into the building. Owners who keep pets in the building without having first provided valid documentation requesting an accommodation are subject to fines as authorized by The Forbes [sic] Declaration of Condominium. 2
5. Any dog or cat shall be required to wear a collar with identification information for the animal and the name, address, and telephone for the animal s owner. 6. The animal shall be leashed and restrained and under control at all times when outside of the apartment and on the Condominium property. 7. For safety and to prevent accidents, the animal shall be carried from the apartment to the exterior of the building and shall not be allowed out of the person s arms or a pet carrier while on the walkways, stairwells, elevators, laundry room, lobby, lounge, storage rooms or other common areas of the building. 8. The animal s waste shall be picked up, bagged and sealed, and properly disposed of in garbage containers. Without limiting the ability to impose fines for other violations of rules and regulations, the owner of the animal is hereby specifically notified that failure to remove and properly dispose of the animal s waste may result in the imposition of waste removal fees in the amount of $5.00 per waste deposit. Under no circumstances shall cat litter be flushed down the toilets. Plumbing repairs due to hardened cat litter will be charged to the pet owner. 9. The animal shall not be allowed to bark or howl or make other noises excessively or otherwise infringe on the quiet enjoyment of other residents, be aggressive or to otherwise become a nuisance or danger to other residents or their guests or invitees. Failure to remedy a nuisance after written warning may result in the Association demanding removal of the animal.... 12. Animals shall not be left unattended in an apartment for periods of time greater than ten (10) consecutive hours for dogs or seventy-two (72) consecutive hours for cats or other animals. If determined that the animal has been left in the apartment unattended for a period of time in excess of these time frames, the Board may attempt to contact the owner or emergency caretaker (obtained from the Emotional Support/Service Animal Registration Form). If the Board is unable to reach the owner or emergency caretaker, the Association may make arrangements for the animal s care, including removal to a boarding facility or to the Humane Society, and any costs incurred will be the obligation of the pet owner and may be assessed against the apartment. (emphasis added). By the terms of the resolution, any determination in this arbitration case under Section 718.1255, Florida Statutes, about the application of the 12 rules and regulations to Respondents necessarily will require the arbitrator to determine whether there is a 3
compelling reason why the rules should not apply. Any determination by the arbitrator whether there is a compelling reason not to apply the rules and regulations would require the arbitrator to evaluate the Fair Housing disability of Arnold V. Dano and the accommodation afforded. 1 The responsibility for deciding such matters does not lie in arbitration pursuant to Section 718.1255, Florida Statutes. Deerfield Beach Gardens Condo. Ass n v. Ramkalawan, Arb. Case No. 2009-02-2300, Order (Sept. 4, 2009). Accordingly, it is ORDERED: The petition is DISMISSED, and Arbitration Case No. 2013-04-7257 is closed. The Association may seek relief in a court of competent jurisdiction. DONE AND ORDERED this 25 th day of November, 2013, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone (850) 414-6867; FAX: (850) 487-0870 [This space intentionally left blank. Certificate of Service appears on next page.] 1 Although the petition names Arnold V. Dano and Rosalin L. Dano as Respondents, it appears from the Statement of the Facts in the petition that that the service/support animal is for the benefit of Arnold V. Dano. 4
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. mail, postage prepaid, to the following person this 25 th day of November, 2013: Anne M. Malley, Esq. Anne M. Malley, P.A. 210 South Pinellas Avenue Suite 200 Tarpon Springs, FL 34689 Attorney for Petitioner Glenn Lang, Arbitrator 5