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 Surfside Club of Naples, Inc., Petitioner, v. Case No Judith Baki, Respondent. / NOTICE OF COMMUNICATION AND FINAL ORDER ON DEFAULT Notice of Communication On March 12, 2010, The Surfside Club of Naples, Inc. (Association) filed the enclosed Response to Order to Show Cause. There is no indication a copy of the document was provided to Respondent. By this notice, the communication is made a part of the record and a copy is provided to Respondent. Except for the initial petition, every pleading or other paper filed in a proceeding shall be served on each party, and all pleadings and motions filed shall include a certificate of service attesting that copies have been sent to the other parties. Fla. Admin. Code R. 61B Therefore, in the future, any paper or other document filed by the Association in this proceeding must indicate that a copy also was sent to Respondent. Final Order on Default Pursuant to section , Florida Statutes, this matter comes before the undersigned upon the mandatory petition for non-binding arbitration filed by the 1

2 Association on July 20, 2009, and the failure of Respondent Judith Baki to file a timely response thereto. The Association s petition alleges that Respondent violated Sections 13.6, 14.1A and 14.1B of the Declaration of Condominium (Declaration) by failing, on specified dates, to notify the Association of her intent to lease her unit, submit a lease application and the processing fee. The petition also alleges that Respondent violated Section 14.2 of the Declaration by leasing her unit more frequently than permitted and for less than the permitted lease term. 1 Finally, the petition alleges Respondent has violated the Apartment Occupancy section of the House and Ground Rules & Regulations, 2008 Revision, which requires each owner to provide to the Association s management office the name, address and relationship of each guest and the guest s anticipated arrival and departure dates. Under the rule, each guest must sign an arrival form provided by management. As relief the Association requests that Respondent be ordered to comply with the condominium documents. The petition is incorporated by reference and made a part of this final order. An Order Requiring Answer was entered on July 28, 2009 and sent to Respondent by U.S. Certified Mail, Return Receipt. An order requiring the Association to serve Respondent personally was entered on September 9, 2009, because the Division never received the return receipt. The Association s December 14, 2009 Notice of Filing included a return of service showing service was not obtained on Respondent at her address in Michigan. The return of service on Respondent at her address at the condominium in Florida did not meet the requirements of law, 2 therefore 1 Under Section 14.2, a unit may not be leased more than once in a season which is defined as October 1 to May 1 each year. The minimum lease term is thirty (30) days. 2 The return of service was not signed by the process server as required by Section , Florida Statutes. 2

3 the Association was ordered on December 18, 2009 to file proof of service on Respondent at her Florida address that met the requirements of law. When proof of service was not received timely, a Final Order of Dismissal was entered on January 5, On January 11, 2010, the Association filed a motion for reconsideration and to vacate the Final Order of Dismissal. The motion was accompanied by proof service on Respondent at her unit in Florida that met the requirements of law. 3 On February 1, 2010, the final order of dismissal was vacated, and Respondent was ordered to file an Answer. A Default was entered on February 18, 2009 after Respondent failed to file an Answer. On February 23, 2010, the February 1, 2010 order vacating dismissal and requiring Respondent to file an Answer and the envelope containing it addressed to Respondent at the unit in Florida were returned to the Division. Affixed to the envelope by the U.S. Postal Service was a notice dated 2/19/10 stating Return to Sender not deliverable as addressed unable to forward. As of the date of this order, the February 18, 2009 Default has not been returned by the U.S. Postal Service, and Respondent has not filed any communication. On March 2, 2010, an Order to Show Cause was entered directing the Association to show cause why the case should not be dismissed, because based upon 3 The signed return of service indicates substitute service was obtained on November 10, 2009 on John Doe as Co-Resident at Respondent s unit at the condominium The return of service contains the following explanatory information pertaining to service, A MAN CAME TO THE DOOR AND STATED THAT SUBJECT WAS INSIDE. HE ALSO STATED THAT HE RESIDED AT THIS ADDRESS WITH SUBJECT. THE SERVER EXPLAINED THE PAPERS THAT SHE HAD TO HlM. HE REFUSED TO STATE HIS NAME BUT SAID HE WOULD GO AND GET HER. HE THEN CAME BACK TO THE DOOR AND SAID SORRY AND SHUT THE DOOR. HE REFUSED TO REOPEN IT. THE PAPERS WERE AGAIN EXPLAINED THROUGH THE DOOR AND LEFT ON THE DOORSTEP. 3

4 the postal service notice, it appeared Respondent no longer owned or resided at the unit. On March 12, 2010, the Association filed a response accompanied by a copy of the warranty deed for the unit showing the unit is owned by Respondent and a copy of a document from the website of the Property Appraiser for Collier County, Florida showing Respondent is the unit owner. As of the date this order, Respondent has failed to file an answer or any other communication with the arbitrator. Findings of Fact 1. Respondent has not responded to the petition nor contested any of its factual allegations. 2. The undersigned finds that the uncontested facts adequately support the allegations. Therefore, the facts stated in the petition are adopted as the finding of facts. Conclusions of Law 1. 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). 2. There is competent substantial evidence in the uncontested petition and record to support the above findings of fact. 3. Based upon the findings of fact, Respondent is found to have violated the 4

5 condominium s controlling documents as alleged in the petition and to have acquiesced in the relief requested by the Association. Therefore it is ORDERED: Respondent shall comply with the condominium documents, including specifically, Sections 14.1 and 14.2 of the Declaration which require Respondent to notify the Association of Respondent s intent to lease Respondent s unit, submit a lease application and the required processing fee and the Apartment Occupancy section of the House and Ground Rules & Regulations, 2008 Revision, which require Respondent to provide to the Association s management office the name, address and relationship of each guest and the guest s anticipated arrival and departure dates and have each guest sign an arrival form provided by management. DONE AND ORDERED this 24 th day of March, 2010, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: (850) Facsimile: (850) 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. 5

6 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail, postage pre-paid, to the following persons on this 24 th day of March 2010: Ashley D. Lupo, Esq. Braden J. Montierth, Esq. Roetzel & Andress, LPA 850 Park Shore Drive Third Floor Naples, FL Counsel for Petitioner Judith Baki 1065 Gulf Shore Boulevard North Unit 108 Naples, Florida Respondent Glenn Lang, Arbitrator 6