STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION STONE S THROW CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 00-2173 PAUL CORSI, Respondent. / FINAL ORDER On December 20, 2000, Stone s Throw Condominium Association, Inc., association or petitioner, filed a petition for arbitration naming unit owner Paul Corsi as respondent. The petition alleges that the respondent has committed several violations of the condominium documents. The alleged violations related to the respondent s dog are as follows: the respondent allows his dog to run loose through the shrubs and plants at the condominium; that he fails to pick-up after his dog; that he has allowed one or more dogs to go into the swimming pool; and that the respondent s dog has soiled the pool. The petition also alleges that the respondent has frequent guests in the unit, that the guests come and go during early morning hours and that the guests disturb other occupants. The petition further alleges that the respondent leaves a bicycle outside of his door or in the common areas in front of the mailboxes, that the respondent places cigarette butts in the common area and that he allows other individuals to leave impermissible items on the common elements. Finally, the petition alleges that others have complained about noise 1
emanating from the respondent s unit. As relief, the petitioner requests that the respondent be required to remove the dog and to cease committing the other violations. On April 17, 2001, a status conference was held during which the parties agreed to confer and settle the dispute. On May 10, 2001, the petitioner filed a status report stating that the respondent failed to communicate with the petitioner with regard to settlement negotiations. As a result, an order setting prehearing procedure was issued. Pursuant to notice, a final hearing was held in this matter on July 19, 2001, in St. Petersburg, Florida. Michael Brudny, Esquire, represented the petitioner. Paul Corsi, the respondent, represented himself. The parties presented the testimony of witnesses and tendered documents into evidence. This order is based upon the complete case file. The first category of offenses to be addressed is the alleged violations related to the dog. The petitioner alleges that the respondent allows his pet to be outside of the unit without being on a leash, in violation of paragraph C of the Pets section of the rules and regulations. During the hearing, Ms. Culkin testified that she had seen respondent s dog outside without a leash. The respondent admitted during his opening remarks that his pet has not always been leashed when outside. Accordingly, the respondent has violated paragraph C of the Pets section of the rules and regulations by permitting his dog outside of the unit without having the dog on a leash. The next issue is whether the respondent failed to properly clean up after his dog, which would constitute a violation of paragraph D of the Pets section of the rules and regulations. Witnesses testified that animal waste was seen at different locations at the condominium property and that they assumed that the culprit was the respondent s dog. None of the witnesses testified to actually having seen the respondent s dog at the scene of these events. Further, the evidence did not establish that the respondent s dog was the 2
only dog on the property. Therefore, the petitioner failed to prove that the respondent committed this particular violation. The petitioner alleges that the respondent permitted his dog to enter the swimming pool and pool area, in violation of paragraph E of the Pets section of the rules and regulations, and that the dog defecated in the swimming pool. The petitioner received complaints that the respondent s dog had been in the pool. The respondent admitted that his dog had been in the pool. The respondent asserted no viable defense with regard to this violation. Therefore, the respondent has permitted his dog to enter into the swimming pool in violation of paragraph E of the Pets section of the rules and regulations. The petition further alleges that the respondent s dog defecated in the swimming pool. The respondent and his dog were seen in the swimming pool at approximately 6:00 a.m. At approximately 8:15 a.m., when cleaning the swimming pool, the workers found feces in it. Although the respondent argues that there was no proof that the feces actually belonged to his dog, the closeness of time between the dog being in the pool and the discovery of the feces makes it more likely than not that it was the respondent s dog s. Regardless of whether the respondent s dog defecated in the pool, its mere presence in the pool was a substantial violation of the rules and regulations. Because the respondent has committed multiple violations of the Pets section of the rule and regulations, including allowing the dog to enter the swimming pool, a violation which placed the health of other unit owners in jeopardy, the respondent s dog is to be permanently removed from the condominium property. The petition further alleges that the respondent leaves a bicycle outside of his door or in the common areas in front of the mailboxes; that the respondent places cigarette butts in the common area and that he allows other individuals to leave impermissible items 3
on the common elements. Rule A of the Building Appearance and Maintenance section of the rules and regulations provides, in part, as follows: The balconies, patios, doors, windows and deck railings shall be used only for the purpose intended. No rugs or mops shall be shaken or hung from any of the units and no clothes, sheets, blankets, towels, bathing suits, laundry or any other kind of articles shall be hung out of a unit or exposed on the common elements.... Unit owners shall not throw cigarette buts or other debris from their patios or balconies.... The respondent admitted that each of these violations had occurred in the past. However, the respondent argued that the boyfriend of the unit owner who complained about the respondent s bicycle had also left his bicycle in an unauthorized area. The respondent failed to assert sufficient facts to show that the association knew about the other alleged violation and failed to take action against the other violator. Accordingly, the respondent has committed this violation and has not asserted a viable affirmative defense. 1 The respondent states that he has made efforts to prevent his visitors from placing cigarette butts on the common elements. Amanda Briggs testified that she smokes and that some of the respondent s other visitors smoke; however, the respondent does not. Ms. Briggs stated that the respondent has made an effort to prevent his guests from placing cigarette on the property by mounting a cigarette-butt can and by making his visitors pick up their cigarette butts. Ms. Briggs testified that she would hang towels outside until she learned that this act was not permissible. The respondent appears to be making steps toward ending these ongoing violations but has not succeeded. The respondent, nevertheless, is responsible for the actions taken by his visitors when they are on the condominium property and is charged with the responsibility of preventing his 1 This in no way means that if others are committing the same violation that it is appropriate to enforce this provision against one violator and not the other. 4
visitors from violating the governing documents. Simply informing one s visitors to stop violating the governing documents is insufficient and is not a defense to the association s enforcement efforts. In view of that, the respondent has violated paragraph A of the Building Appearance and Maintenance section of the rules and regulations. The petition also alleges that the respondent has frequent guests in his unit, that the guests come and go during early morning hours and that the guests disturb other occupants by being noisy. Rule B of the Disturbing Noise section of the rules and regulations provides as follows: No resident may permit his family friends, guests or servants to make any disturbing noises, within their unit, balcony or patio, in the condominium building or on association property that interferes with the rights and confront of other residents. Unit owner Hope Kleinfeld has lodged numerous complaints against the respondent. Ms. Kleinfeld testified that she has been disturbed by noises emanating from the respondent s unit and the respondent s guest on several occasions. Ms. Kleinfeld listed several examples of her being disturbed by the respondent and his guest, including these three incidents: Ms. Kleinfeld was awakened at 3:00 a.m. by the respondent calling for his dog; she was awakened at 12:20 a.m. by the respondent whistling and clapping for his dog; and she was awakened between 12:30 a.m. and 1:00 a.m. a few weeks prior to the hearing by people talking in the parking lot. Ryan Kwiatkowski testified to having gone to the respondent s unit on a few occasions to ask the respondent to decrease the noise level. The complaints filed with the association along with the testimony of the witnesses indicate that the noise emanating form the respondent s unit is disturbing to other unit owners. Penny Briggs, described by the respondent as his best friend, testified that in the beginning the respondent did not comply with the rules but the respondent has made 5
efforts to conform to the rules. 2 Based upon the foregoing, the respondent has violated rule B of the Disturbing Noise section of the rules and regulations. It is ORDERED: 1. Within fourteen days of the date of this order, Paul Corsi, the respondent, shall permanently remove his dog from the condominium property. 2. The respondent shall not place debris on the common elements and shall not permit his visitors to place debris on the common elements. 3. The respondent shall neither place personal property outside of his unit on the common elements nor shall he permit his visitors to do so. 4. The respondent shall cease creating noise between the hours of 11:00 p.m. and 8:00 a.m. that disturbs other residents. 5. In the future, the respondent shall comply with the entire Pets section of the rules and regulations, rule B of the Disturbing Noise section of the rules and regulations and rule A of the Building Appearance and Maintenance section of the rules and regulations. DONE AND ORDERED this 16th day of October 2001, at Tallahassee, Leon County, Florida. Cassandra Pasley, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1029 2 The respondent s efforts to comply with the condominium documents are noted; however, thus far, his actions have not been sufficient. 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 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. ATTORNEY S FEES As provided by s. 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. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to Michael J. Brudny, Esquire, Brudny & Rabin, P.A., 28100 U.S. Highway 19 North, Suite 300, Clearwater, FL 33761 and Paul Corsi, 6915 Stone s Throw Circle North, Unit 3207, St. Petersburg, FL 33710, this the 16th day of October 2001. Cassandra Pasley, Arbitrator 7