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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION OAK HARBOUR, SECTION FOUR CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No KATHLEEN DOOLEY, Respondent. / SUMMARY FINAL ORDER The petition for arbitration filed on September 15, 2000, seeks as relief an order requiring the respondent/unit owner to permanently remove her dog from the condominium unit. According to the petition, dogs over 30 pounds are not permitted. The petitioner/association further asserts that the dog is a nuisance. The respondent filed an answer which admits that the dog weighs over 30 pounds, but denies that the dog constitutes a nuisance. Rule 61B , Florida Administrative Code, provides for summary disposition of disputes which do not involve a disputed issue of material fact as shown by the answer. Such procedure is appropriate in this instance as the respondent has admitted a dispositive fact underlying the violation for which the petitioner seeks relief. The petitioner cites as authority for its request for relief the following: Declaration of condominium, article XXIX, paragraph L., which provides that in no event shall a unit owner keep more than two dogs or two cats... Any such pet shall not 1

2 exceed a maximum adult weight of 30 pounds. On the basis of the foregoing, it is concluded that the respondent has violated article XXIX, paragraph L. of the declaration. Consequently, it is concluded that the petitioner has established a prima facie case entitling it to the relief requested. Because this issue is dispositive, the disputed issue of whether the pet constitutes a nuisance is not material and need not be addressed. The respondent s answer raises several defenses: 1. The dog and its physical appearance were known to the condominium at the time of closing. Further, the respondent, who was given the condominium documents just prior to closing, was assured at the time of closing that owning the dog would pose no difficulty. 2. The dog is 10 years old and to require that the respondent get rid of it is cruel to the dog and owner, and is an abuse of the power of the board. 3. The prohibition against dogs weighing over 30 pounds, without other criterion which would make it a nuisance or otherwise undesirable, especially when dogs in general are permitted, is arbitrary, capricious and unrelated to any rational benefit to the condominium or its residents. With regard to the second and third defenses, the undersigned notes that provisions of the declaration, which the association through its board is bound to enforce, are afforded great credence by the courts. As the court stated in the seminal case of Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, (Fla. 4th DCA 1981), restrictions contained in the declaration of condominium are clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed. Such restrictions are very much in the nature of 2

3 covenants running with the land and they will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. In addition, the undersigned notes that restrictions on the size of pets are not capricious or arbitrary, but further a legitimate aim of the drafter. In Rittlinger v. Martinique 2 Owners Assn., Inc., Arb. Case No , Final Order, (January 21, 1999) (appealed to circuit court but subsequently settled by the parties), it was held by the arbitrator that a rule limiting the size of dogs was reasonable because, when viewed in conjunction with the rule that dogs must be carried when outside the unit, the weight rule would enable owners to better control their dogs, both to prevent frightening confrontations and to promote the cleanliness of the common elements. It was further pointed out that provisions in condominium documents limiting the size of pets have been repeatedly upheld. Southport at Hunters Run Condo. Assn., Inc. v. Gilson, Arb. Case No , Summary Final Order (April 19, 1994) (provision in declaration limiting pet weight to 25 pounds required removal of unit owner s overweight dogs); Racquet Club Apts. at Bonaventure 4 North Condo. Assn., Inc. v. Boehle-Nelson, Arb. Case No , Final Order (Oct. 29, 1996) (seventypound German shepherd ordered removed pursuant to bylaw provision limiting pets to 20 pounds); Spring Lake Condo. Assn., Inc. v. Bruce, Arb. Case No , Summary Final Order (Oct. 21, 1994) (oversized chow banned from condominium property where rule permitted only pets weighing less than 25 pounds). Based upon the foregoing, the respondent s second and third defenses are found to be without merit and are STRICKEN. Respondent s first defense, asserting that the condominium was aware of the dog, was addressed by the undersigned in an order requiring the respondent to provide 3

4 supplemental information regarding the defense, which appeared to assert estoppel or waiver. Specifically, respondent was required to furnish information establishing which persons were aware of the dog at closing and assured the respondent the dog would pose no difficulty. Respondent was further instructed to provide the title or condominium affiliation of each person, and the date the communication occurred. Respondent furnished information reflecting that the persons who were aware of the dog and assured respondent at closing that it would pose no problem were Marsha Cammarata of Stirling Realty and Greg Christener of Coldwell, the realtor for the sellers. The undersigned notes that assertions by realtors do not bind the association and the respondent was not entitled to rely on their statements amounting to assurances that the restriction contained in the declaration would not be enforced. See Rittlinger, above; Terraces Condo. Assn., Inc. v. Morgenstern, Arb. Case No , Final Order (Aug. 2, 1994) (statem ent by developer s sales agent that pet restriction would never be enforced cannot bind the association and estop it from enforcing the pet restriction). Based upon the foregoing, respondent s first defense is STRICKEN. The association has established that a violation of the declaration has occurred and the respondent s defenses have been stricken; consequently, the relief requested is granted. Accordingly, it is ORDERED and ADJUDGED: ` 1. Respondent shall permanently remove her dog from the unit and condominium property within 30 days of the mailing of this order. 2. Respondent shall henceforth comply with article XXIX of the declaration of condominium. 4

5 Florida. DONE AND ORDERED this 6th day of April, 2001, at Tallahassee, Leon County, RIGHT TO APPEAL Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida As provided by s , F.S., this final order may be appealed by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties. ATTORNEY S FEES As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other parties pay its reasonable costs and attorney s fees. Rule 61B , 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 , 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 faxed and mailed by U.S. mail, postage prepaid, this 6th day of April, 2001, to: 5

6 JAMES E OLSEN ESQ WEAN AND MALCHOW P A 1305 E ROBINSON ST ORLANDO FL Attorney for petitioner/association NORMAN LINDER HULL ESQ P O BOX ORLANDO FL Attorney for respondent/unit owner Tyler Powell, Arbitrator 6

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