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 THE LANDINGS OF TAMPA CONDOMINIUM ASSOCIATION, Petitioner, v. Case No JOSEPH A. FISHER, 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 September 28, 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 Petitioner: Barbara J. Prasse, Esq. PO Box Tampa, FL For Respondent: John Cullum, Esq. PO Box 7901 Wesley Chapel, FL

2 Statement of the Issues 1. Whether Respondent s dog is a pit bull or other breed that the Association s board of directors can reasonably consider to be dangerous. 2. Whether Respondent s dog is a nuisance. Findings of Fact 1. The Landings of Tampa Condominium Association, Inc. (hereafter Association) is the corporate entity responsible for the operation of The Landings of Tampa, A Condominium. 2. Respondent, Joseph A. Fisher, owns Unit 805 within the Association. Respondent is therefore subject to the governing documents of the Association. 3. Section 17.3 of the Association s Declaration of Condominium states: Animals. Each Unit Owner or occupant (regardless of the number of joint owners or occupants) may maintain two (2) household pets (except fish and birds for which there is no limit on the number) in his Unit, to be limited to dogs and/or cats (or other household pets defined as such and specifically permitted by the Association such as fish and caged (domestic type) birds), provided that such pets are (a) permitted to be so kept by applicable laws and regulations, (b) not kept, bred or maintained for any commercial purpose, (c) not left unattended on balconies or in lanai areas, (d) generally, not a nuisance to residents of other Units or of neighboring buildings and (e) not a pit bull or other breed considered to be dangerous by the Board of Directors; provided that neither the Board nor the Association shall be liable for any personal injury, death or property damage resulting from a violation of the foregoing and any occupant of a Unit committing such a violation shall, and does hereby fully indemnify and hold harmless the Board of Directors, the Developer, each Unit Owner and the Association in such regard. Unit Owners much pick-up all solid wastes of their pets and dispose of such wastes appropriately. All pets (including cats) must be carried or kept on a leash no more than six (6) feet in length at all times when outside the Unit. No pets may be kept on balconies when the Owner is not in 2

3 the Unit. Without limiting the generality of Section 19 hereof, violation of the provisions of this paragraph shall entitle the Association to all of its rights and remedies, including but not limited to, the right to fine Unit Owners (as provided in any applicable rules and regulations) and/or to require any pet to be permanently removed from the Condominium Property upon three (3) days notice. This Section 17.3 shall not prohibit the keeping of fish or a caged household-type bird(s) in a Unit, provided that a bird(s) is not kept on Limited Common Elements and does not become a nuisance or annoyance to neighbors. Emphasis supplied. 4. Section 17.6 of the Association s Declaration of Condominium provides: Nuisances. No nuisances (as defined by the Association) shall be allowed on the Condominium property, nor shall any use or practice be allowed which is a source of annoyance to residents or occupants of Units or which interferes with the peaceful possession or proper use of the Condominium Property by its residents or occupants. No activity specifically permitted by this Declaration shall be deemed a nuisance. 5. Respondent s dog, whose name is Gabe, weighs 57.6 pounds and is a mixed breed. 6. On January 27, 2011, while on the Association premises, Gabe attacked Nikko a dog which was owned by another member of the Association, Helena DiSalvo. Nikko was being walked on the Association grounds when Gabe bit and seized Nikko in the neck and shoulder area. Nikko died as a result of the attack by Gabe. Nikko was 15 years old and weighed 47 pounds at the time of death. 7. Helena DiSalvo testified to her general fear that Gabe may attack again. 8. Norma Harr, another member of the Association, testified that she is fearful that Gabe could get loose and attack again. 3

4 9. On February 23, 2011, Hillsborough County Animal Services classified Gabe as a dangerous dog. The written reasons given for this decision by Hillsborough County Animal Services state that Gabe: (1) Has aggressively bitten, attacked, or endangered, or has inflicted severe injury on a human being on public or private property; and (2) Has more than once severely injured or killed a domestic animal while off the owner s property. 10. Respondent admitted at the final hearing that Gabe has previously bitten a human being. 11. The Association s board of directors has deemed Gabe to be dangerous and, by pre-arbitration notice dated May 23, 2011, demanded permanent removal of Gabe from the condominium premises. 12. Respondent has not permanently removed Gabe from the condominium premises. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to Section , Florida Statutes. The first issue to be determined is whether Gabe is a pit bull or other breed that the Association s board of directors can reasonably consider to be dangerous. Respondent, at the final hearing, argued that Gabe is a Labrador mixed breed. On the other hand, the Association maintained that Gabe is a pit bull mixed breed. Based on the evidence presented, the arbitrator finds that it is unnecessary to determine with a DNAlike level of certainty the precise breed of dog that is Gabe. Section 17.3 of the Association s Declaration of Condominium grants the board of directors the authority to 4

5 determine a breed of dog to be dangerous. Section 17.3 also provides that unit owners may not keep in their unit a breed of dog that the board of directors has determined to be dangerous. Whatever breed of dog Gabe is, the Association s board of directors has determined him to be dangerous. Under the facts presented, the arbitrator concludes that it was reasonable for the board to consider Gabe to be dangerous. This conclusion is made even more obvious given the fact that Hillsborough County Animal Services has classified Gabe as a dangerous dog. As a result of the foregoing conclusion, it is unnecessary for the arbitrator to rule on the second issue of whether Gabe is a nuisance. The arbitrator s approval of the board s determination that Gabe is dangerous is sufficient under the governing documents to compel Respondent to remove Gabe from the condominium. Based upon the above, it is ORDERED: Within thirty (30) days of the date this order, Respondent shall permanently remove his dog Gabe from his unit and the Association s premises. DONE AND ORDERED this 12 th day of December, 2011, at Tallahassee, Leon County, Florida. David R. Slaton, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850)

6 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 to the following persons on this 12 th day of December, 2011: Barbara J. Prasse, Esq. PO Box Tampa, FL Attorney for Petitioner John Cullum, Esq. PO Box 7901 Wesley Chapel, FL Attorney for Respondent David R. Slaton, Arbitrator 6