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 VICTORIA PARK TOWER ASSOCIATION, INC., f/k/a LEISURE PARK, Petitioner, v. Case No JOSEPH HAYWOOD AND DANIELLE HARTE, Respondents. / FINAL ORDER On September 20, 2001, Victoria Park Tower Association, Inc. f/k/a Leisure Park (petitioner/association) filed a petition for arbitration naming unit owners Joseph Haywood and Danielle Harte as respondents. The petition alleges that the respondents have been disruptive and allowed guests to be disruptive at all hours of the day and evening, have failed to remove a motorcycle from the condominium property and are creating excessive noise, yelling, and other annoyances, in violation of Article 10, Section 3 of the declaration of condominium and Rules 10, 19, 25 and 26 of the condominium rules. As relief, the petitioner requests a permanent injunction enjoining the respondents from being disruptive and from allowing their guests to be disruptive. The petitioner also requests that the respondents be required to remove the motorcycle from the condominium property; since the filing of the petition, the moped (which was identified by the petitioner as a motorcycle) has been removed from the property. On December 3, 2001, the respondents filed an answer to the petition, stating that the guest and moped had been removed and requesting a more definite statement with 1

2 regard to the noise nuisance issue. An order to show cause and requiring more definite statement was directed to the petitioner. On December 20, 2001, the petitioner filed its notice of good cause and more definite statement. At that time, the petitioner denied the assertions that the guest and moped had been removed and asserted further allegations concerning nuisance activity. On December 28, 2001, an order setting prehearing procedure was entered, which required the parties to file witness and exhibit lists and dates of availability for final hearing. The petitioner filed its prehearing pleadings and dates of availability on January 22, The respondents filed none of the requested information. On January 6, 2002, a notice of final hearing was issued informing the parties that the final hearing would be held on February 15, 2002, at 9:00 a.m. at the law offices of the petitioner s counsel. On February 11, 2002, Respondent Joseph Haywood filed a letter stating that he does not wish to appear at the petitioner s counsel s law firm and would prefer either a neutral location or a 3-way telephone conversation. On February 13, 2002, an ordered was entered changing the location of the hearing to the condominium recreation room. In the afternoon of February 14, 2002, Respondent Joseph Haywood faxed a letter to the arbitrator, stating that 9:00 a.m. was too early to hold the final hearing and that 11:00 a.m. or later would be the best time for him and that he would prefer a 3-way telephone conference. Mr. Haywood left a telephone number and requested that a message be left if his suggested changes were acceptable. Subsequently, counsel for the petitioner faxed a letter objecting to changing the hearing time because he was scheduled to leave town at 12:00 noon. An administrative assistant from the arbitrator s office 2

3 called the number provided by Mr. Haywood and left a message that the hearing would proceed as scheduled; she also left the same message at Mr. Weintraub s office. On February 15, 2002, a formal hearing was held in this matter, commencing at approximately 9:10 a.m. The arbitrator appeared from Tallahassee, Florida via telephone, and initiated the hearing by calling the condominium recreation room. Lee A. Weintraub, Esquire, represented the petitioner. The respondents did not appear. The petitioner presented the testimony of the following witnesses: Michael Curasi, Walter Schlidt, Diana Schlidt, Brian Clough, Betty Leone, Ken Olsen and John Symons. The petitioner tendered documents into evidence. This order is entered upon consideration of the complete record in this matter. The issues in dispute are whether the respondents have been disruptive and allowed their guests to be disruptive and whether the respondents and their guests are creating a nuisance by being excessively noisy. Article 10, Section 3 of the declaration of condominium provides: 3. Nuisances. No nuisances shall be allowed upon the condominium property, nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents. All parts of the property shall be kept in a clean and sanitary condition, and no rubbish, refuse or garbage allowed to accumulate nor any fire hazard allowed to exist. No apartment owner shall permit any use of his apartment or of the common elements which will increase the rate of insurance upon the condominium property. Rule 10 of the condominium rules provides: 10. Conduct: No person shall engage in loud and boisterous or other disorderly, profane, indecent or unlawful conduct on any portion of the condominium property, including, without limitation, inside any dwelling unit or in any common area. Any resident, either owner or lessee, committing an act which interferes with the comfort and enjoyment of the property of any other owner shall be notified in writing by the Board of 3

4 Directors of the commission of such nuisance. Failure to cease and desist such nuisance will result in the Board exercising he injunctive powers granted to it by the Florida statutes. Rule 26 of the condominium rules provides: 26. Nuisances: No unit owner shall make or permit any disturbing noises any place upon the condominium property by himself, his family, servants, employees, agents, visitors, or licensees, nor do or permit anything by such persons that will interfere with the rights, comfort or conveniences of other unit owners. No phonograph, television, radio, sound amplifier or other sound equipment may be played or operated in such a manner that same disturbs or considerate of their neighbors and refrain from disturbing noises between the hours of 11:00 p.m. and 9:00 a.m. Radios and television sets shall be turned low after 11:00 p.m. Based on the testimony and pleadings, the following facts are found. The association has received numerous complaints from neighboring businesses and other unit owners regarding Respondent Haywood s behavior. Michael Curasi, President of the association, has received complaints reporting loud noises during the night after 10:00 p.m. and as early as 4:00 a.m. or 5:00 a.m. Brian Clough, the owner of unit 609, lodged a written complaint against the respondents (dated September 13, 2001) and testified at the final hearing. On two separate occasions, individuals have turned the doorknob to Mr. Clough s unit. On one of those occasions, the person opened the door to Mr. Clough s unit. The person saw Mr. Clough then exited the unit; Mr. Clough followed the person and saw him enter the respondents unit. Realtor Eileen O Boyle met a prospective buyer on the condominium property. Upon arrival, an unidentified male who was standing on the ground and Maria who was standing on the respondents balcony were engaging in a conversation using obscene language. 4

5 When they observed Ms. O Boyle counting to identify the unit number, they turned their obscenities on her. Walter Schildt and Diana Schildt live in unit 505 and are the respondents downstairs neighbors. The Schildts have filed numerous complaints with the board against Respondent Haywood. The stench from the respondents unit has permeated the Schildts unit. Ants have infested the Schildts unit because Respondent Haywood refuses to allow access to their unit for pest control. Respondent Haywood threw urine on Mr. Schildt. Respondent Haywood and his guests frequently engage in loud and boisterous conduct, drunk activities and Maria, who the witness identified as a prostitute in Respondent Haywood s employ, continues to reside in the respondents unit. Respondent Haywood and Maria were observed fighting on December 6, 2001 and December 9, Ms. Schildt observed Mr. Haywood and his girlfriend engaging in a sexual act in the condominium parking lot. The Schildts are moving into another unit because of Respondent Haywood s behavior. Betty Leone was on her way to visit a friend when she saw Respondent Haywood passed out in the hallways. Ms. Leone awoke the Respondent Haywood and asked him to go into his unit. Later that day, Ms. Leone observed an incident where the police had been called because Respondent Haywood was passed out on a couch in the lobby. To prove the existence of a nuisance requires a showing of more than mere annoyance or disturbance. Beckman v. Marshall, 85 So. 2d 552, 555 (Fla. 1956)(citing Antonik v. Chamberlain, 81 Ohio App. 465). A nuisance is established where the property owner's use of her property is found not to be reasonable and where the disturbance complained of results in injury to the legal rights of the complaining party. Id. The law of private nuisance is a law of degree; it generally turns on the factual question whether the 5

6 use to which the property is put is a reasonable use under the circumstances, and whether there is an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort. Id. The petitioner has shown that Respondent Haywood and his guests have engaged in behavior that has resulted in an attempt to enter another owner s unit, an infestation of ants in the downstairs neighbors unit, a verbal attack on a realtor, the dumping of urine on the downstairs neighbor, the soiling of another owner s parking spot and numerous other incidents. Respondent Haywood and his guests behavior go well beyond mere annoyances and inconveniences. The petitioner has proven that the disturbing behavior engaged in by Respondent Haywood and his guests unreasonably interferes with other unit owners use and enjoyment of their property. There is no cause of action for nuisance in the absence of some injury, and noise, to constitute a nuisance, must interfere with a substantial right, or must unreasonably interfere with a person s use and enjoyment of his property. 58 Am. Jur. 2D Nuisance 145. However, under Florida law, a noise need not even rise to the level of a legal nuisance to be actionable. In Candib v. Carver, 344 So. 2d 1312 (Fla. 3rd DCA 1977), the court recognized that where a covenant restriction outlaws property use that is an unreasonable source of annoyance to unit owners or which interferes with the peaceful and proper use of the property by another condominium owner, the contract confers a right of protection against a degree of annoyance, which may be less than a legal nuisance. Rule 26 prohibits unit owners from making disturbing noise between the hours 11:00 p.m. and 9:00 a.m. The board has received numerous complaints from other 6

7 owners regarding loud noise emanating from the respondents unit. Michael Curasi, President of the association, has received complaints reporting loud noises during the night after 10:00 p.m. and as early as 4:00 a.m. or 5:00 a.m. It is a reasonable assumption that loud noises at 4:00 a.m. or 5:00 a.m. interfere with other unit owners ability to sleep. The assumption is supported by the fact that the owners complain to the board. Furthermore, as stated in Egret s Walk III Condominium Association, Inc. v. Athans, Arb. Case No , Final Order (April 3, 1997), it is common knowledge that any loud noise late at night or very early in the morning is disturbing to humans, who are nocturnal sleepers. The petitioner has proven that the noise emanating from the respondents unit unreasonably interferes with other unit owners use and enjoyment of their property. It is ORDERED: 1. The relief requested by the petitioner is GRANTED. 2. The respondents shall immediately cease engaging in all nuisance activity. Specifically, the respondents shall cease making excessive and loud noise particularly between the hours of 11:00 p.m. and 9:00 a.m. and shall prohibit their guests from doing so. The respondents shall cease engaging in disturbing behavior that interferes with other unit owners right to peacefully enjoy their property, particularly the behavior outlined in the petition and this order, and the respondents shall prohibit their guests from doing so. 3. In the future, the respondents shall comply with Article 10, section 3 of the declaration of condominium and rules 10, 25 and 26 of the condominium rules. 7

8 DONE AND ORDERED this 21st day of February 2002, at Tallahassee, Leon County, Florida. Cassandra Pasley, Arbitrator Arbitration Section Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT TO TRIAL DE NOVO Pursuant to section , 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 , 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 , 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 mailed by U.S. mail, postage prepaid, to: Lee A. Weintraub, Esquire, Becker & Poliakoff, P.A., 3111 Stirling Road, Fort Lauderdale, FL and Joseph Haywood and Danielle Harte, 900 N.E. 18th Ave., Unit #605, Fort Lauderdale, FL 33304, this 21st day of February Cassandra Pasley, Arbitrator