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 Sanibel Harbour Tower South Condominium Association, Inc., Petitioner, v. Case No Orazio Mattioli, Respondent. / FINAL ORDER ON DEFAULT This matter comes before the undersigned upon the mandatory petition for nonbinding arbitration, pursuant to section , Florida Statutes, filed by Sanibel Harbour Tower South Condominium Association, Inc. (Petitioner) on May 30, 2008, and Orazio Mattioli s (Respondent) failure to file a timely response thereto. Petitioner has filed a petition claiming that the Respondent has violated sections and 17.5 of the condominium s restated declaration of condominium (declaration) by installing hard surface tile floors in his units living and dining room areas. Petitioner also alleges that Respondent has violated section 23 of the declaration because the tile floor creates excessive noise. As relief the Association requests that the arbitrator enter an order: 1. Finding Respondent in violation of sections , 17.5 and 23 of the declaration. 2. Directing Respondent to remove permanently the tile from the living and dining room areas, restore the sub-flooring to its prior state, and install carpeting of good quality padding in both units. 3. Directing Respondent to pay any fines assessed by Petitioner. 4. For exemplary, punitive, and/or compensatory damages. 5. A default judgment for liquidated damages in the event of noncompliance. 1

2 6. Directing Respondent to pay Petitioner s attorney s fees and costs. Respondent was duly served in this matter on June 30, 2008, and a default was entered against him on August 7, As of the date this order, the Respondent has failed to file an answer or any other communication with the arbitrator. A defaulting party admits well-pleaded facts and acquiesces in the relief sought. North American Acc. Ins. Co. v. Moreland, 53 So. 635, 637 (Fla. 1910); State Farm Mut. Ins. Co. v. Horkheimer, 814 So. 2d 1069, 1072 (Fla. 4th DCA 2001) citing, Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747, 749 (Fla. 4th DCA 1997); Northgate Condominium Association, Inc. v. Samaniego, Arb. Case No , Final Order on Default (August 16, 1993). Respondent has failed to file an answer or any other communication in this matter. Therefore, Respondent is deemed to have admitted the facts alleged in the petition and this final order on default is entered accordingly. Findings of Fact 1. Sanibel Harbour Tower South Condominium Association, Inc. is the legal entity responsible for the operation of the Sanibel Tower South, A Condominium (the condominium). 2. Respondent is the owner of units 934 and 935 at the condominium. 3. On March 19, 2007, Respondent sought approval from Petitioner s board of directors to combine the two units and to install hard surface tile flooring throughout the combined units including areas that were carpeted. 4. On March 22, 2007, the board approved Respondent s request to combine the two units. However, the board denied approval of the installation of tile flooring in the living room, dining room and bedrooms. By letter dated July 9, 2007, the board 2

3 denied a request by Respondent to reconsider its decision regarding the tile flooring. 5. On November 26, 2007, a board member discovered that Respondent had installed tile flooring in the living and dining areas of his unit. The board member confirmed that carpeting had been installed in the bedroom. 6. Since the installation of the tile in areas that were previously carpeted, Respondent s neighbors have complained of loud and excessive noises emanating from the living and dining areas. provides: provides: 7. Section of the condominium s restated declaration of condominium all carpeted areas as delivered at closing must remain carpeted, maintained and replaced by the condominium unit owner at his expense. Substitute floor coverings in these carpeted areas are not permitted without the prior written consent of the Condominium Association. 8. Section 17.5 of the condominium s restated declaration of condominium All units above the first floor shall always have the floors covered with wall-to-wall carpeting, except in kitchens, bathrooms, balconies, foyers, and utility or laundry rooms, except as provided below. Hard floor surfaces (tile, marble, wood, etc.) may only be installed upon prior written approve of the Board of Directors, which shall condition its approval on the unit owner s proof of the installation of appropriate sound-deadening material, as determined by the Board. Specifications for sound proofing of hard flooring must be approved in writing by the Board or its representative prior to installation, and then the installed sound proofing must be inspected and approved prior to installation of the hard flooring. Any hard flooring which has been installed in violation of this clause shall be subject to removal, by order of the Board of Directors, either for verification that appropriate sounddeadening underlayment has been installed, or if not, removal of the hard flooring. 9. Section 23.2 of the condominium s restated declaration of condominium 3

4 provides: Nuisance. The condominium units shall not be used for any immoral, improper or unlawful purpose and no use shall be allowed which will create a public or private nuisance. No unit owner shall permit any loud or objectionable noises or noxious odors to emanate from the unit. All property shall be kept in a neat and orderly manner. Conclusions of Law Sanibel Tower South, A Condominium, is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the parties and subject matter of this dispute pursuant to section , Florida Statutes. Respondent, by his ownership of the units at the condominium, is required to comply with all governing condominium documents. As state above, Respondent is deemed to have admitted the facts alleged in the petition. Therefore, Respondent is found to have installed tile flooring in the living and dining areas of his units which areas were carpeted previously. Additionally, Respondent did not obtain the written approval of Petitioner for installation of the tile flooring. Such actions by Respondent constitute a violation of sections and 17.5 of the condominium s restated declaration. Since the installation of the tile in areas that previously were carpeted, Respondent s neighbors have complained of loud and excessive noises emanating from the living and dining areas. Therefore, Respondent is found to have violated the loud and objectionable noise provisions of Section 23.2 of the condominium s restated declaration of condominium. As relief the Association requests that the arbitrator enter an order: 4

5 1. Finding Respondent in violation of sections , 17.5 and 23 of the declaration. 2. Directing Respondent to remove permanently the tile from the living and dining room areas, restore the sub-flooring to its prior state, and install carpeting of good quality padding in both units. 3. Directing Respondent to pay any fines assessed by Petitioner. 4. For exemplary, punitive, and/or compensatory damages. 5. A default judgment for liquidated damages in the event of noncompliance. 6. Directing respondent to pay Petitioner s attorney s fees and costs. The undersigned finds it appropriate to order Respondent to permanently remove the tile from the living and dining room areas and to restore the sub-flooring to its prior state, and install carpeting and padding equivalent to the carpeting previously installed. As to Petitioner s request for attorney s fees and costs, any factual disputes regarding whether Petitioner is the prevailing party for the purpose of awarding costs and attorney s fees may be determined in a subsequent proceeding whereby the Petitioner seeks reimbursement of its costs and attorney s fees. To the extent that the other requested relief is within the arbitrator s jurisdiction to grant, Petitioner has failed to plead any facts that would support granting such relief. Based upon the foregoing, it is ORDERED: 1. Respondent violated the condominium s restated declaration of condominium. 2. Within thirty days of the date this order Respondent shall remove permanently the tile from the living and dining room areas, restore the sub-flooring to its prior state, and install carpeting and padding equivalent to the carpeting previously installed. 3. Petitioner s request for attorney s fees and costs will be addressed in subsequent proceeding should Petitioner timely seek reimbursement. 5

6 4. All other relief requested by Petitioner is denied. DONE AND ORDERED this 17 th day of September, 2008, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 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 on default has been sent by U.S. Mail to the following persons on this 17 th day of September, 2008: Susan M. McLaughlin, Esq. Condo & HOA Law Group, LLC 2030 McGregor Boulevard Fort Myers, FL Orazio Mattioli 136 Highlawn Avenue Brooklyn, NY James W. Earl, Arbitrator 6