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 SORRENTO VILLAS, SECTION 5, ASSOCIATION, INC., Petitioner, v. Case No KIRSTEN A. SHEETS, Respondent. / SUMMARY FINAL ORDER Issue Presented The issue presented in this case is whether Respondent, Kirsten Sheets, violated the Declaration of Condominium of Sorrento Villas, Section 5, by installing an unapproved buried electric invisible dog fence, referred to by Respondent as a dog containment system, on the condominium s common element. Relevant Procedural History On June 26, 2014, Sorrento Villas, Section 5, Association, Inc. ( the Association ) filed a petition for arbitration naming Kirsten A. Sheets as Respondent. The Association s petition alleged that Respondent installed an invisible dog fence upon the common elements of the condominium property, in violation of the condominium documents. On July 10, 2014, Respondent filed an Answer. In the Answer, Respondent included numerous counter-claims and also indicated as a defense that she, or her child, has a need for the invisible dog fence/containment system which may be covered Page 1 of 11

2 by state or federal housing discrimination law, hereinafter referred to as Fair Housing. Because the responsibility for deciding such claims does not lie in arbitration pursuant to Section , Florida Statutes, 1 in an Order dated July 24, 2014, the case was placed in abeyance while Respondent s Fair Housing discrimination complaint was pending before the Florida Commission on Human Relations (hereinafter referred to as the Fair Housing Authority ). All but one of Respondent s counter-claims were stricken in that Order. On July 31, 2014, the Association filed a Status Report and motion to proceed, based upon the Fair Housing Authority s issuance of a Notice of Determination of No Cause. On August 4, 2014, Respondent filed a letter requesting that the case be held in abeyance while she filed a Petition for Relief with the Fair Housing Authority to dispute its determination of no cause. According to the Fair Housing Authority, Respondent had 30 days from service of their Notice of Determination of No Cause to file a Petition for Relief. On August 7, 2014, an Order was entered continuing the case in abeyance until September 5, On August 11, 2014, the Association filed a Motion for Reconsideration and Clarification of Order of August 7, On August 11, 2014, an Order on the Association s motion was entered, continuing the case in abeyance. On August 15, 2014, Respondent filed a letter from James D. Gibson, Esquire, which was addressed to the Association s counsel. On August 22, 2014, the Association filed a Notice of Supplementing Record and Motion to Quash Abeyance and Proceed with Arbitration. Attached to the Notice was a copy of the Fair Housing Authority s 11 page 1 Deerfield Beach Gardens Condo. Ass n v. Ramkalawan, Arb. Case No , Order (Sept. 4, 2009). Page 2 of 11

3 Determination in the case of Sheets and Kalagher v. Sorrento Villas, Section 5, Assoc., Inc., Case No , FCHR No. 2014H0219. On September 5, 2014, Respondent filed a Response and Objection to the Association s Motion to Quash, and a Notice of Appearance indicating that Respondent had engaged legal counsel. The Response stated that Respondent had filed an appeal of the Fair Housing Authority s determination of no cause to the Division of Administrative Hearings, which had been assigned DOAH Case No.: On September 9, 2015, an Order was entered continuing the case in abeyance and striking Respondent s sole remaining counter-claim. On September 15, 2014, the Association filed a Notice of Status Report. On September 16, 2014, an Order was entered continuing the case in abeyance. On October 6, 2014, Respondent filed correspondence apparently from Respondent s medical provider. On November 13, 2014, the Association filed a Status Report indicating that Respondent s appeal of the Fair Housing Authority s determination of no cause was set for an evidentiary hearing on February 10 and 11, On November 18, 2014, an Order was entered continuing the case in abeyance until February 18, On November 26, 2014, the Association filed a Motion for Reconsideration of the Order extending the abeyance, and requesting that the arbitration case proceed to conclusion. The Association s motion was denied in an Order entered on December 4, On February 6, 2015, the Association filed a Status Report indicating that Respondent had voluntarily dismissed her appeal of the Fair Housing Authority s Page 3 of 11

4 determination of no cause to the Division of Administrative Hearings, DOAH Case No.: , on or about January 28, On February 19, 2015, an Order was entered directing Respondent to show cause why a summary final order should not be entered. On March 6, 2015, Respondent filed a Response to Order to Show Cause stating that Respondent has filed a new Fair Housing Complaint with the U.S. Department of Housing and Urban Development ( HUD ), requesting that the case be held in abeyance while the new Fair Housing Complaint is processed, raising several affirmative defenses, and requesting permission to file an amended Answer to the petition. Apparently HUD referred Respondent s complaint to the Florida Commission on Human Relations ( Fair Housing Authority ) where it was assigned Case FCHR # 2015H0177. On March 10, 2015, the Association filed a status report and a motion to proceed with the arbitration case. On March 16, 2015, an order was entered denying the Association s motion and continuing the case in abeyance. On March 20, 2015, the Association filed a motion to strike Respondent s request to continue the case in abeyance. On March 27, 2015, Respondent filed a response to the Association s motion to strike. On April 1, 2015, an order was entered denying the Association s motion. On June 1, 2015, Respondent filed a status report stating that the Fair Housing Authority had not yet reached a decision on Respondent s complaint. On June 9, 2015, an order was entered continuing the case in abeyance. On July 15, 2015, Respondent filed a status report indicating that the Fair Housing Authority had issued a Notice of Determination of No Cause with regard to Respondent s complaint, Case FCHR # Page 4 of 11

5 2015H0177. This final order is entered upon consideration of all the pleadings and documents filed in the arbitration case. Findings of Fact 1. The Association is the entity responsible for the maintenance and operation of Sorrento Villas, Section 5, a condominium. 2. Respondent owns a unit in Sorrento Villas, Section 5, and is a member of its Association and is subject to the Declaration of Condominium and the Rules and Regulations. 3. Amended Article 6, Section 6.8, of the Declaration of Condominium of Sorrento Villas, Section 5 (hereinafter Declaration ) provides in pertinent part: [T]here shall be no alteration or further improvement of either the general common elements or the limited common elements, without prior approval in writing of two-thirds (2/3) of the Unit owners in attendance in person or by proxy at a duly called and convened meeting of the Association. 4. Respondent, in her Answer, admits that she has installed a buried electric invisible dog fence, which she refers to as a dog containment system, on the common elements outside the boundaries of her unit, without obtaining approval for its installation from two-thirds of the Unit owners in attendance at a duly called and convened meeting of the Association. 5. On July 21, 2014, the Fair Housing Authority issued a Notice of Determination of No Cause, Determination, and Notice of Rights finding no violation of the Fair Housing laws by the Association for demanding removal of the invisible dog fence. 6. Respondent filed an appeal of the Fair Housing Authority s determination of no cause to the Division of Administrative Hearings, DOAH Case No.: Page 5 of 11

6 7. Respondent voluntarily dismissed her appeal of the Fair Housing Authority s determination of no cause, DOAH Case No.: , on or about January 28, Respondent filed another Fair Housing discrimination complaint on or about March 6, On or about July 15, 2015, the Fair Housing Authority issued a Notice of Determination of No Cause on Respondent s discrimination complaint. Conclusions of Law The Division has jurisdiction over this matter pursuant to Section , Florida Statutes. Rule 61B , Florida Administrative Code, requires entry of a summary final order when no disputed issues of material fact have been raised by the pleadings. In the case at hand, the Association has filed a petition against Respondent seeking to enforce the restrictions in the Declaration against making alterations to the condominium s common elements without obtaining approval of other unit owners, as specified in the Declaration. In her Answer, Respondent admitted to having installed an invisible dog fence, a/k/a dog containment system, on the common elements outside the boundaries of her unit. Respondent, in her Answer, raised the defense of a violation of Fair Housing laws, which was stricken by order of the arbitrator on July 11, Thereafter, the Fair Housing Authority determined there was no Fair Housing violation. Respondent initiated an appeal of the Fair Housing Authority s determination by filing an Appeal to the Division of Administrative Hearings. However, Respondent voluntarily dismissed this appeal on or about January 28, Respondent then requested that the arbitration case continue to be abated because she had filed a new Page 6 of 11

7 complaint with another Fair Housing Authority. Respondent was granted an abatement of the arbitration case for over one year, while she unsuccessfully pursued her serial claims of housing discrimination. Affirmative Defenses In Respondent s Response to Order to Show Cause, Respondent attempts to claim there are disputed issues of material fact in the arbitration case by raising several affirmative defenses. Respondent states that these affirmative defenses were originally raised in the Answer to the petition, but were not identified as affirmative defenses because the Answer was written when Respondent was acting pro se. Respondent has alleged, as an affirmative defense in her Response to the Order to Show Cause that was filed on March 6, 2015, that the Association s motive in filing this case was retaliation against her. Pursuant to Section (2), Florida Statutes, and Article 6, Section 6.8, of the Declaration, the Association has the duty and authority to enforce the condominium s governing documents, including the prohibition of alterations to the common elements. While that duty is subject to some discretion, 2 it must be carried out in a manner that is not arbitrary or inconsistent. In the instant case, its claim against Respondent regarding her unauthorized installation of the buried electric dog fence is an outgrowth of this duty. Respondent has not pled that the Association has failed to enforce the governing documents against other unit owners. The personal feelings of board members towards Respondent are irrelevant. Therefore, Respondent s defense that this arbitration case was motivated by retaliation is without merit and is DENIED. 2 See High Point of Del Ray West Section 1, Condo. Ass n, Inc. v. Brasgold, Arb. Case No F, Final Order on Attorney s Fees (March 06, 1996). Page 7 of 11

8 Respondent has also raised, in her March 6, 2015 Response to the Order to Show Cause, the affirmative defense that the Association s claim against her is based on an unwritten rule, newly designed to harass her. This issue was not raised in Answer to the petition. However, the arbitrator notes that Amended Article 6, Section 6.8, of the Declaration is clear in its prohibition against alteration of the common elements without approval as specified in the Declaration. This prohibition has been included in the Declaration since 1972, although the number of unit owners whose approval is needed for alterations of the common elements was amended in If Respondent had raised this defense in her Answer to the petition, the defense would have been without merit, and it remains so. Finally, Respondent has resurrected, as an affirmative defense in her Response to the Order to Show Cause, a previously stricken counter-claim that the Association has selectively enforced the prohibition against alteration of the common elements by the Association itself appropriating common elements. This claim does not constitute an affirmative defense. It is an impermissible counter-claim that was already stricken in the Order entered on July 24, To the extent that Respondent attempts to raise it again in the form of an affirmative defense, it is DENIED for the reasons set forth in the Order of July 24, 2014, which are incorporated herein. Respondent s defense that she has not erected anything on, or altered, the common elements because the invisible dog fence, a/k/a dog containment system, is buried underground, rather than extending upward, is without merit. Section , Florida Statutes, prohibits any material alteration of, or substantial addition to, the common elements of any condominium unless approved in the manner provided in the Page 8 of 11

9 declaration of condominium. Respondent's interpretation of material alteration would inevitably lead to the conclusion that unit owners could materially alter the common elements as long as they hid the alteration. Unit owners would have free reign to alter the common elements, despite potentially disastrous results, as long as the alteration was concealed. Plumbing and electrical wiring within the condominium's walls could be altered, for example, if the wall was patched following the alteration. Such a result is untenable. Sable Chase Condo. Ass n, Inc. v. Summers, Arb. Case No , Summary Final Order (June 25, 1998). To the extent that Respondent also tries to raise the above affirmative defenses as disputed issues of fact, the issues of fact are not material, pursuant to Rule 61B , Florida Administrative Code. Respondent has admitted that she has installed a buried electric dog fence, which she refers to as a dog containment system, on the common elements outside the boundaries of her unit, without obtaining approval in the manner specified in Amended Article 6, Section 6.8, of the Declaration of Condominium of Sorrento Villas, Section 5. Respondent has not raised any valid defense. Therefore, Respondent must permanently remove the invisible dog fence, a/k/a dog containment system, from the common elements. Accordingly, it is ORDERED: 1. Respondent s affirmative defenses set forth in her Response to Order to Show Cause and Answer are DENIED. 2. Respondent s request to file an amended Answer to the petition is DENIED. Page 9 of 11

10 3. On or before August 20, 2015, Respondent shall permanently remove the buried electric invisible dog electric fence, a/k/a dog containment system, from the common elements of the condominium property. If Respondent does not remove the invisible dog fence, a/k/a dog containment system, by the aforesaid date, the Association may remove it at Respondent s expense. 4. At all times in the future, Respondent shall comply with Amended Article 6, Section 6.8, of the Declaration of Condominium of Sorrento Villas, Section 5. DONE AND ORDERED this 21 st day of July, 2015, at Tallahassee, Leon County, Florida. Leslie O. Anderson-Adams, 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 , Florida Administrative Code. [Certificate of Service appears on the following page.] Page 10 of 11

11 Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and Facsimile to the following persons on this 21 st day of July, 2015: James W. Mallonee, Esq. JAMES W. MALLONEE, P.A. 946 Tamiami Trail, #206 Port Charlotte, FL Fax: (941) Attorney for Petitioner James D. Gibson, Esq. GIBSON, KOHL, WOLFF & HRIC, P.S. 400 Burns Court Sarasota, FL Fax: (941) Attorney for Respondent Leslie O. Anderson-Adams, Arbitrator Page 11 of 11