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 IMPERIAL COURT CONDOMINIUM RECREATIONAL ASSOCIATION, INC., Petitioner, v. Case No SONIA MALISA, Respondent / FINAL ORDER DISMISSING PETITION FOR LACK OF JURISDICTION On March 26, 2015, Petitioner, Imperial Court Condominium Recreational Association, Inc. (the Association) filed a petition for mandatory, non-binding arbitration naming Sonia Malisa as Respondent. The petition alleges Respondent is harassing, making slanderous and defamatory accusations of an employee of the Association, Ms. Ventura. Additionally, Ms. Ventura is also a tenant residing in a unit in the condominium. As relief, the Association seeks an order: 1) Requiring Respondent to cease and desist from all harassment of Ms. Ventura, including but not limited to threatening Ms. Ventura, making defamatory and slanderous statements about Ms. Ventura and banging on Ms. Ventura s door; 2) cease and desist from all behavior that is intended to annoy, intimidate or harass Ms. Ventura; and 3) pay all attorney s fees and costs related to this arbitration. 1

2 The arbitrator has jurisdiction to hear and decide only those controversies that constitute disputes as defined in Section (1), Florida Statutes, which provides as follows: (1) DEFINITIONS. As used in this section, the term dispute means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner's unit or the appurtenances thereto. 2. Alter or add to a common area or element. (b) The failure of a governing body, when required by this chapter or an association document, to: 1. Properly conduct elections. 2. Give adequate notice of meetings or other actions. 3. Properly conduct meetings. 4. Allow inspection of books and records. Dispute does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. In general, jurisdiction has been accepted over, and injunctions issued, to prohibit an owner's actions against other persons, where those actions occurred upon association premises and constituted a nuisance. Eldorado Towers Condominium Association v. Wile, Arb. Case No , Order on Jurisdiction (August 20, 1996)(Jurisdiction existed where petitioner association alleged that respondent owner was creating a nuisance by harassing and abusing association employees.). However, while actions or behaviors which constitute a nuisance are within the jurisdiction of the 2

3 arbitrator, disputes related to alleged acts of defamation and slander are not. See Terry v. Hidden Forrest Condominium Association, Inc., Arb. Case no , Final Order Dismissing Petition (June 27, 1994)(there is no statutory authority for the arbitrator to entertain claims involving libel or slander). 1 Rule 61B (4), Florida Administrative Code, provides, (4) Where a controversy involves both matters eligible and ineligible for arbitration, the arbitrator shall determine by order whether the ineligible matters may properly be severed from the controversy so that the remaining eligible issues may be arbitrated. Arbitration cases have held that where some of the issues in the arbitration petition within the jurisdiction of the arbitrator pursuant to Section (1), Florida Statutes, are intertwined with issues that are not within the jurisdiction of the arbitrator, the petition for arbitration will be dismissed. See, e.g., Madura v. Lakebridge Condo. Ass'n, Inc., Arb. Case No , Final Order of Dismissal (Oct. 25, 2011); Esch v. Wing South, Inc., Arb. Case No , Final Order of Dismissal (May 7, 2010) (where ineligible breach of fiduciary duty by the board by allegedly failing to obtain competitive bids and approving work not in compliance with FAA standards intertwined with notice of meetings and inspection of official records, petition was dismissed); Cypress Chase Condo. C Ass'n, Inc. v. Austin, et al, Arb. Case No , Order Dismissing Petition for Lack of Jurisdiction (Aug. 26, 1997) (where ineligible title issue intertwined with noise, unit condition and access issues, petition was dismissed). The heart of the 1 Additionally, while allegations of nuisance are typically within the jurisdiction of the arbitrator, the Association has not alleged in the petition that Respondent s actions constitute a nuisance in violation of the Association s governing documents. Finally, upon review of the Association s pre-arbitration notice, [Petitioner s Exhibits C and D], the pre-arbitration notice that has been provided to Respondent has been limited to the allegations of harassment which constitute a cause of action for her allegedly defamatory/slanderous statements. 3

4 instant case involves Respondent s actions and behaviors which may constitute nuisance and those actions and behaviors alleged to be defamatory and slanderous. In this case, the Association has only alleged that Respondent s actions and behaviors are harassment due to their defamatory and slanderous nature. While an issue of nuisance would be within the jurisdiction of the arbitrator, the allegations of defamation and slander are so intertwined with the facts of this case that judicial economy requires that all of the issues be determined in a single forum. Therefore, the Association will be permitted to pursue its claims in a court of competent jurisdiction. Therefore, as the Association has only alleged the harassment of Ms. Ventura constitutes defamation and slander, the case must be dismissed. It is therefore ORDERED: Arbitration Case No is DISMISSED for lack of jurisdiction, and Petitioner may seek relief in a court of competent jurisdiction. DONE AND ORDERED this 1 st day of April, 2015, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida FAX:

5 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 person on this 1 st day of April, 2015: Kimberly B. Cook, Esquire Westerman Zetrouper, P.A nd Street North, Suite 100 St. Petersburg, Florida Tonya S. Chavis Arbitrator 5