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 THE KING COLE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No MARINELL RICHARDSON, Respondent. / FINAL ORDER The petitioner filed a petition for arbitration on May 31, 2000, alleging that the unit owner maintains a pet cat within her unit in violation of Article 17 paragraph (c) of the revised and restated Declaration of Condominium. The respondent admits maintaining a cat within her unit and admits that the cited paragraph prohibits the keeping of a pet, but she argues that the pet prohibition is being selectively enforced against her. A final evidentiary hearing was convened via telephone on August 1, The petitioner was represented by counsel and presented testimony from both the president of the condominium association and the condominium's management company. The respondent appeared pro se and testified but did not present additional witnesses. The disputed issue is whether the provisions of the condominium documents that prohibit cats are being selectively enforced against the respondent. The pertinent provision of Article 17 of the Amended and Restated Declaration of Condominium for King Cole recites as follows: 1

2 17. Obligations of Unit Owners. *** (c) Not to keep pets or other animals in his Unit, or within the Common Elements. The respondent testified that in February 2000, before purchasing her unit, she signed a form explicitly stating the pet prohibition as well as an occupancy limit not relevant to this action. She then gave away her cat in order to move into the condominium. Upon moving in, however, she noticed several pets in neighboring units. Other residents advised her that one of the pets (the Dalmatian) had been grandfathered in because it had been in place before the prohibition but that the others were simply being ignored by the board. She heard that when a Yorkshire terrier and a Persian cat were brought in, the board advised the pet owner to "declare" them and keep them. She witnessed a large cat that fell onto her lanai from a unit above, and observed that a neighbor moved in next door a few months before the hearing, bringing several grey cats. None of these other pets were the subject of arbitration petitions; the respondent accordingly concluded that the board was proceeding selectively against her alone. The respondent agreed that she had not notified the board of the existence of these other pets. The president of the condominium association's board testified that the board was not enforcing the pet prohibition as recently as three years ago. The Dalmatian, the Yorkshire terrier, and the Persian have all been in residence for more than four years. In August 1999, the Declaration of Condominium was amended and restated pursuant to a 1997 vote of the membership. The president testified that although pets then being kept at the condominium were grandfathered, the board took a stance of enforcing the documents from that point on. Since then, cats living in the garden have 2

3 been trapped and removed, and every new pet's owner has been sent a letter as the pet was discovered. Where letters have proven ineffective, the association's attorney has been directed to file petitions for arbitration. The president testified that now that she has been apprised of the cats living next door to the respondent, she will take action against them. She was unaware of a cat living above the respondent's unit, possibly because the owners of that unit spend much of their time elsewhere. The president of the management company testified that he periodically walks the grounds with the on-site manager. Since August 1999, he has directed the manager to write a letter ordering the removal of any pet he has noticed during these walks. Three such letters were written in June and July 2000, after commencement of this case, and one of those pets has already been (or is alleged to have been) removed. Where the manager's letters are ineffective, the attorney sends one. Where the attorney's letters are ineffective, the pets are, or are to be, the subject of arbitration petitions. The witness did not know whether the other petitions had been filed yet. The respondent's evidence that certain pets had arrived at the condominium less than a year before she moved in, was hearsay which, standing alone, is legally insufficient to support a finding of fact. Rule 61B (4)(a), Florida Administrative Code. Similarly, the respondent's evidence that the board knew of pets recently brought to the condominium by other residents and that the board deliberately ignored these pets--or tacitly approved of them--is hearsay. On the other hand, the petitioner's witnesses gave competent evidence that pets were tolerated only until August 1999 and that, since the amendment and restatement of the declaration of condominium, the 3

4 petitioner has actively watched for new pets and has initiated action whenever one was noticed. It is not unusual for an association that has not enforced a restriction for a lengthy period of time to set a point in time and declare its intention to enforce the restriction prospectively. It is also common, and in some cases prudent, for associations making this decision to determine not to act against then-existing violations. The case of Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So. 2d 29 (Fla. 3rd DCA 1985) involved a declaration of condominium that forbade the practice of enclosing balconies without association approval. Despite that prohibition, as many as 45 unit owners enclosed their balconies before the association announced that it thereafter would "prohibit future balcony constructions and enforce the prohibition." Subsequently, when Chattel Shipping and Investment, Inc., (Chattel) enclosed a balcony, the association demanded the removal of the enclosure. Chattel argued that in light of the association's toleration of the many existing enclosures, the demand to remove Chattel's enclosure constituted "unequal and arbitrary enforcement of the restriction" in violation of the principle of selective enforcement set forth in White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979). The court rejected Chattel's argument, holding that "the adoption of a uniform policy under which...a given building restriction will be enforced only prospectively can not be deemed 'selective and arbitrary'."(e.s.) The court noted that the enclosures built before the association announced its intent to begin enforcement were protected because they had been built "in justified reliance" on the status quo, as opposed to "the present appellant, which erected its forbidden structure after being 4

5 placed on specific notice that any subsequent violation would not be permitted. (citations omitted) 481 So. 2d at 30, 31. (emphasis added) The petitioner argues that its decision to enforce the pet prohibition prospectively dates from August 1999, when the declaration was amended and restated, and that since August 1999 the prohibition has been conscientiously enforced. Unfortunately, this is not enough. The amendment and restatement of the entire declaration with no variation of the pet provision does not serve as adequate notice of the petitioner's decision to begin enforcing the pet prohibition or of the decision to enforce the prohibition only prospectively, against pets not then in residence. The text of the declaration in no way emphasizes the pet prohibition, and refers to neither existing pets nor new pets as a separate category. Further, nothing in the record reflects that the association published a separate notice to the unit owners that from now on this particular provision of the documents would actually be enforced, or that the provision would be enforced only against pets not presently in residence. The form that the respondent was required to sign before purchasing the unit gave her notice of the prohibition; however, the form did not give notice that there were two classes of pets and that the petitioner enforced the prohibition against only one of those classes. The board's decision to not enforce the prohibition against existing pets was not set forth in the text of the condominium documents and the record does not establish that the entire membership of the association was otherwise explicitly notified of the decision. Under the reasoning set out in the Chattel Shipping case, the association must provide 5

6 notice of its intent to prospectively enforce the provision prior to any actual enforcement of the restriction. The notice requirement has not been satisfied in this case. Under the circumstances shown in this record, the petitioner's decision to enforce the pet prohibition against new pets constituted a decision to selectively enforce the documents. Because the provision is being selectively enforced against pets brought into the condominium after August 1999, the provision may not be enforced. See White Egret, supra. Unless and until the board gives explicit, universal notice of the actual policy, including the grandfathering provision and the intent to enforce the prohibition prospectively, the Chattel Shipping rationale may not be used to support the enforcement of the prohibition against a single class of pets. ACCORDINGLY, IT IS ORDERED: The relief requested by the petitioner, an order requiring the removal of the respondent's pet, is DENIED. DONE AND ORDERED this 25th day of August 2000, at Tallahassee, Leon County, Florida. Therese Pine, Arbitrator Dept of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. CERTIFICATE OF MAILING 6

7 I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to STEVEN A FEIN, ESQ. at STEVEN A FEIN PA, 900 SOUTH STATE ROAD 7, PLANTATION FL and to MARINELL RICHARDSON at 900 BAY DR #119, MIAMI BEACH FL on this the 25th day of August ATTORNEY S FEES Therese Pine, Arbitrator As provided by Section , Florida Statutes, 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. 7