STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BAY REACH CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No ROBERT P. SAUER, JR. A/K/A PETER SAUER, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in this case on April 2, During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and cross-examined witnesses. The parties have filed post-hearing memoranda. This order is entered after consideration of the complete record. Appearances For Petitioners: Lora D. Howe, Esq. Law Office of Lora D. Howe 4400 Northcorp Parkway Palm Beach Gardens, FL For Respondent: Robert Sauer, Jr. a/k/a Peter Sauer 1135 Lake Shore Drive Apt# 204 Lark Park, FL 33403

2 Statement of the Issue Whether Respondent violated Articles III(G) and XXVIII of the Declaration of Condominium, and the Pet Rules of the condominium by allowing his dog to be off leash on the condominium property, during which time the dog bit Mr. and/or Mrs. Guy Mancini. Relevant Procedural History On November 14, 2013, the Petitioner, Bay Reach Condominium Association, Inc. ( Association ), filed a Petition for Mandatory Non-binding Arbitration. An Order Requiring Answer was entered on November 20, Respondent was duly served with the Petition and Order Requiring Answer on November 23, A Default was entered against Respondent on December 31, 2013, for failing to file an Answer or other pleading in the case. Respondent filed a letter on January 14, 2014 in response to the Default. A telephonic case management conference was held on February 10, The Default was vacated in an order entered on February 11, Respondent filed an Answer to the petition on February 26, A second telephonic case management conference was held for the above-styled matter on March 12, A telephonic final hearing was held in this case on April 2, 2014, on the limited issue of whether Respondent s dog bit Mr. and/or Mrs. Mancini. On April 24, 2014, the Association filed its proposed findings of fact and conclusions of law. On April 28, 2014, Respondent filed his proposed findings of fact and conclusions of law. This Final Order is based upon consideration of the complete record in this case, including pleadings, witness testimony, and exhibits. Findings of Fact 1. Bay Reach Condominium Association, Inc., (the Association) is the 2

3 corporate entity responsible for the operation of Bay Reach, a Condominium, and the maintenance of the common elements. 2. Respondent is a unit owner within the condominium and a member of the Association and is governed by the Declaration of Condominium (declaration) and other governing documents of the Association. 3. Article III(G) of the declaration states, in pertinent part: Each owner of a Unit shall be entitled to use the common elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of owners or other Units. 4. Article XVIII of the declaration states, in pertinent part: OBLIGATIONS OF UNIT OWNERS In addition to the other obligations and duties heretofore set out in this Declaration, each unit owner shall:.. C. Not permit or suffer anything to be done or kept in unit owner s Unit which will increase the insurance rates on unit owner s Unit, or the common elements, or which will obstruct or interfere with the rights of other unit owners or annoy them by unreasonable noises or otherwise; nor shall a unit owner commit or permit any nuisance or any immoral or illegal act in unit owner s Unit or on the common elements. 5. Article XXVIII of the declaration states: PETS Pets weighing in the aggregate more than fifty (50) pounds and any type of exotic pet or exotic animal shall not be kept or harbored within the confines of a Unit, without the prior written consent of the Association. Such consent may be given upon such conditions as the Board of Directors may direct, in the sole discretion of the Board of Directors, shall be only for the particular pet specified in the consent and shall be deemed provisional and subject to revocation at any time. In addition, not more than one (1) pet may be kept or harbored within a Unit. Pets must be hand carried at all times when not within the Unit of the pet s owner. No pet or animal shall be maintained or harbored within a Unit that 3

4 would create a nuisance to any other unit owner or lessee. A determination by the Board of Directors that a pet or animal maintained or harbored within a Unit creates a nuisance or is exotic shall be binding and conclusive on all parties. 6. The Rules and Regulations state, in pertinent parts: 4. No pet or animal shall be maintained or harbored within a unit that would create a nuisance to other unit owners/tenant(s).. 5. Pets must be kept on a leash at all times. 7. There is no dispute that Respondent owns two dogs that reside in his unit. Both are Jack Russell Terriers. Joey, the male, has only three legs. Bailey, the female, has four legs. 8. There is no dispute that Respondent has, on more than one occasion, allowed his two dogs to be off leash in a particular area of the common element property near the water, where some residents allow their dogs to run and play off leash, as in a dog park. The Association has not approved the use of the area for this purpose, nor is the area fenced to confine the dogs. There is no dispute that both of Respondent s dogs were off their leashes in this area of the common element property on October 11, 2013, at about 5:30 p.m. 9. Guy Mancini testified that at about 5:30 p.m. on October 11, 2013, he and his wife were in the process of taking their own dog for a walk on its leash. They entered the area of the common element property where Respondent s dogs were running and playing off leash with a third dog. When Mr. Mancini saw other dogs running loose on the common element property, he picked up his dog. 4

5 10. Mr. Mancini testified that he and his wife, who was nine months pregnant at the time, were some distance from each other and he did not see Respondent s dog biting his wife, but he heard her screaming and ran to her. He saw Respondent s dogs scurrying around Mrs. Mancini while she was screaming. 11. Mr. Mancini testified that Respondent s dogs then came towards him and the four-legged dog (Bailey) bit him on the leg. He testified that he got upset and threatened to throw Respondent s dog into the water. 12. Karla Mancini testified that she and her husband Guy Mancini were walking their own dog, on its leash, on the common element property, heading towards the water on October 11, 2013, at about 5:30 p.m. The Mancini s dog pooped and Mrs. Mancini picked up the excrement and went to dispose of it in the trash basket. She saw three dogs playing, off their leashes. The dogs started to yap and Respondent s four-legged dog ran over to her and bit her leg. 13. Mrs. Mancini testified that she was yelling and cursing when her husband came over to her, carrying the Mancini s dog. Respondent s dogs continued yapping and running around Mr. and Mrs. Mancini. Mrs. Mancini did not see Respondent s dog biting her husband, but saw a wound on his leg. 14. The parties introduced into evidence photographs of the injuries sustained by Mr. and Mrs. Mancini when they encountered Respondent s dogs, and patient discharge instruction sheets from Jupiter Medical Center. The patient discharge instruction sheets were dated October 11, 2013, were labeled with Karla Mancini s and Guy Mancini s names, and contained instructions for home care of animal bites. Both 5

6 Mr. and Mrs. Mancini testified that they went to the hospital at about 7:00 p.m. on the evening of October 11, 2013, where they were treated for injuries attributed to dog bites. 15. Mr. Billy Ball testified that he was present during the incident on October 11, 2013, because his dog, Lucy, was playing with Respondent s dogs. Mr. Ball testified that he saw Mrs. Mancini come around the corner with a water bottle in her hand. Respondent s three-legged dog (Joey) approached Mrs. Mancini and she screamed, kicked at the dog, and threw the water bottle at the dog. 16. Mr. Ball testified that he quickly tried to get the dogs under control and that he saw Respondent s other dog (Bailey) approach Mrs. Mancini, but did not observe any contact except maybe with a paw. Mr. Ball testified that Mr. Mancini then came around the corner, joined his wife, and they both were yelling and threatening to sue [Respondent]. 17. Ms. Shirley Clark testified that she was present during the incident on October 11, 2013, when Mr. Ball s dog Lucy was playing with Respondent s dogs. Ms. Clark testified that she observed Mrs. Mancini arrive and begin screaming while the dogs were barking. Ms. Clark testified that she quickly picked up Mr. Ball s dog and took it indoors. Ms. Clark testified that she did not see Respondent s dog biting anyone. 18. Ms. Bethany Clark testified that she did not see Respondent s dog biting anyone, but she saw what appeared to be fresh wounds on Mr. and Mrs. Mancini s legs on October 11, 2013, after they told her that they had been bitten by Respondent s dog. 19. Although Respondent has expressed skepticism as to whether the wounds on the Mancinis legs were actually caused by dog bites, as opposed to scratches, both Mr. and Mrs. Mancini testified that they were bitten by Respondent s 6

7 four-legged dog Bailey. The undersigned arbitrator concludes that they were in the best position to know if they were bitten, and finds it unlikely that they would have subjected themselves to emergency medical treatment for dog bite injuries if they did not believe they had been bitten. 20. The medical records submitted into evidence indicate that the Mancinis were treated at Jupiter Medical Center for animal bites. The photographs of the Mancinis injuries that were submitted into evidence showed that each had small wounds on the calf area of one leg. The undersigned arbitrator will not second-guess the treating medical professionals as to whether the wounds were consistent with animal bites. 21. Based upon the witnesses testimony about the incident, it is highly likely that Mrs. Mancini s behavior (i.e. screaming, yelling and, as one witness testified, kicking and throwing a water bottle at the dogs) and the fact that Mr. Mancini was carrying the Mancini dog and shouting, caused Respondent s dogs to become increasingly agitated. 22. No evidence was introduced to indicate that either of Respondent s dogs has previously bitten or behaved aggressively toward anyone. 23. At a meeting on October 18, 2013, the Association s Board of Directors determined Respondent s dog Bailey to be a nuisance, based upon the incident of October 11, 2013, and the fact that both dogs have continuously been allowed to run around unleashed on the condominium property. 24. The Board of Directors has elected not to enforce the one-pet-per-unit and the hand carried at all times provisions of the Declaration of Condominium, but 7

8 has elected to enforce the no pet or animal shall be maintained or harbored within a unit that would create a nuisance provision and the Pets must be kept on a leash at all times rule, at least against Respondent. The Association has not asked the undersigned arbitrator to find that Respondent has violated the one-pet-per-unit or hand carried at all times provisions. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to Section , Florida Statutes. Whether Respondent s Dog is a Nuisance The Association relies on 2 cases in its argument that Respondent s four-legged dog, Bailey, is a nuisance and therefore must be permanently removed from the condominium property. The first case, Waterway Plaza, Inc. v. Jauregui, Arb. Case No , Final Order (December 31, 2001), involved a dog that had committed two separate unprovoked attacks on different dates and on two different unit owners. The dog in question was referred to as a large dog of an unspecified breed. The arbitrator in that case found that these attacks supported a finding that the respondent's dog was creating a nuisance and was interfering with other unit owners' peaceful possession of their units. The second case, Ocean One at 194 th Condo. Ass n, Inc. v. Medvedev, Arb. Case No , Final Order (November 14, 2000), involved a dog that had committed two separate unprovoked attacks on different dates on two other dogs. The dog in question was a 130 pound Bull Mastiff. The arbitrator in that case found that the 8

9 respondent s dog was creating a nuisance and was interfering with other unit owners peaceful possession of their units. According to the American Kennel Club and a Russell Terrier (also known as a Jack Russell Terrier ) stands inches tall at the shoulder and weighs pounds. Thus, the dogs in the above two cases cited by the Association are not at all comparable to Respondent s dogs in size and weight. Furthermore, the dogs in the above cited cases showed unprovoked aggressive behavior on at least two separate occasions. In the instant case, the witnesses testimony indicated that Respondent s dog had not bitten anyone prior to the October 11, 2013 incident, and that this incident was likely provoked by the Mancinis actions, whether intentionally or not. According to the minutes of the meeting on October 18, 2013, the Association s Board made its determination that Respondent s dog Bailey is a nuisance based upon the incident of October 11, 2013, and the fact that both of Respondent s dogs have continuously been allowed to run around unleashed on the condominium property. The undersigned arbitrator does not agree with the Board s conclusion that the dog Bailey is a nuisance. A nuisance is that which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or occupancy physically uncomfortable. Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 130, 198 So. 819, 822 (Fla. 1940). The existence of a single incident, such as playing music or a television too loud, does not make a person a nuisance and unfit to live in the community. Whether an activity constitutes a private nuisance is a question to be decided based on the facts 9

10 presented, and a court looks to whether there is an appreciable, substantial, tangible injury to the property rights of others, and not merely a trifling annoyance, inconvenience, or discomfort. Horizons West Condo No 1 Ass'n, Inc. v Marc Alpert and Jeffrey Stone, owners, and Roberto Roldan and Zoila Roldan, tenants, Arb, Case No , Final Order (March 26, 1996) citing Bechman v. Marshall, 85 So 2d 552 (Fla. 1956), Baum v Coronado Condominium Association, Inc., 376 So 2d 914 (Fla. 3 rd DCA 1979). While the incident of October 11, 2013, was undoubtedly more than a mere trifling annoyance, inconvenience, or discomfort from the Mancinis point of view, it was the only instance of Bailey biting anyone, and her behavior was likely provoked or at least exacerbated by the Mancinis own actions. 1 Although the Bay Reach Declaration of Condominium defines nuisance as whatever the Board thinks it should be on any given day, the evidence presented does not support a finding that Bailey is a 1 This is not a liability case, however the undersigned arbitrator takes note of Section , Florida Statutes, which states, in pertinent part: Dog owner s liability for damages to persons bitten. The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person s negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. (Emphasis supplied.) Case law recognizes that Section provides dog owners with some measure of relief from the severe consequences of the strict liability imposed under the statute. Wendland v. Akers, 356 So.2d 368, (Fla. 4 th DCA 1978). See also Donner v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So.2d 21 (Fla. 1978) wherein the court stated: With regard to those statutory defenses, the legislature apparently felt that good morals dictated that if a person kicks, teases, or in some other way provokes the dog into injuring him, he should not be compensated. 10

11 nuisance according to established legal standards. Therefore, the undersigned arbitrator declines to find that Bailey is a nuisance. However, it is undisputed that Respondent has allowed Bailey and Joey to be off leash, in violation of the Association s leash rule. Appropriate Remedy Where a lesser remedy will achieve the result sought, an injunction should go no further in ordering relief. Bayfront Tower Condo. Ass n, Inc. v. Rebmann, Arb. Case No , Final Order (September 13, 2007) (citing The Atrium On Bayshore Ass n, Inc. v. Garcia, Arb. Case No , Final Order (August 1, 2002) (citing Knecht v. Katz, 785 So.2d 754 (Fla. 5 th DCA 2002)). Therefore, the undersigned does not find it necessary to order the removal of Bailey, as the Association requests. Rather, Bailey should be required to be securely leashed at all times she is outside Respondent s unit on the common elements or condominium property, as the condominium s rules require all pets to be. Based upon the above, it is ORDERED: 1. Effective immediately, Respondent shall securely leash his dogs at all times when they are outside Respondent s unit on the common elements or condominium property. 2. If there are any future documented instances of Bailey being unleashed while she is on the common elements or condominium property outside Respondent s unit, she shall be permanently removed from the condominium and shall not be returned. 11

12 Florida. DONE AND ORDERED this 27 th day of May, 2014, at Tallahassee, Leon County, Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: (850) Facsimile: (850) Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and electronic mail to the following persons on this 27 th day of May, Lora D. Howe, Esq. Law Office of Lora D. Howe 4400 Northcorp Parkway Palm Beach Gardens, FL lorahowelaw@yahoo.com Attorney for Petitioner Robert Sauer, Jr. (Peter Sauer) 1135 Lake Shore Drive Apt# 204 Lark Park, FL PSJupiter2001@aol.com Respondent Leslie O. Anderson-Adams, Arbitrator 12