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 OCEANIA II CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No ERNIE FERNANDEZ, Respondent. / FINAL ORDER DISMISSING PETITION On July 18, 2005, the petitioner filed its Amendment to Mandatory Non-Binding Petition Form. The purpose of the amendment was to establish that the petitioner provided pre-arbitration notice to the respondent in accordance with section (4)(b), Florida Statutes. Section (4)(b) provides as follows: (b) The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents: 1. Advance written notice of the specific nature of the dispute; 2. A demand for relief, and a reasonable opportunity to comply or to provide relief; and 3. Notice of the intent to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition. (e.s.) The purpose of the pre-arbitration notice is to advise an offender (either the unit owner or the association) of the violation he has committed and give the offender the 1

2 opportunity to cure the violation. The offender must be advised of the nature of the violation, exactly how the violation can be corrected, and the length of time he has to correct the violation. Further, the offender must be advised that, if the violation is not corrected within the time period provided, a petition for arbitration will be filed or other legal action will be pursued. The purpose of the notice is to allow the offender to correct his errors and cure the violations without the necessity formal legal proceedings and the associated attorney s fees and costs. In this case, the respondent was sent a certified letter on May 5, 2005, advising him that on more than one occasion he had allowed noisy, raucous parties to take place within his unit well into the early morning hours. The letter directed the respondent to immediately desist from permitting any further loud or unruly parties. The letter would have complied with section (4)(b), but it was never received by the respondent. It was returned to the sender. In the petition for arbitration filed July 8, 2005, the petitioner referred to the unclaimed letter as the pre-arbitration notice required by section (4)(b), Florida Statutes. Because a letter that is not claimed by the respondent cannot constitute the required notice, the petition for arbitration would normally have been dismissed at that time. However, counsel for the petitioner was called because there was an inconsistency on the postal service s website for the letter s certified mail number. Counsel verified that the certified letter was returned to the law firm, but stated that another letter had been sent by regular mail. Petitioner was told to file an amendment to the petition alleging compliance with the notice requirements and a copy of the letter received by the respondent. 2

3 The letter attached to the Amendment to Mandatory Non-Binding Petition Form, is dated July 5, Rather than advise the respondent that any future disturbances will result in a petition for arbitration being filed, the letter mentions the letter from Mr. Lewis that the respondent had not received and states that [i]n an effort to end the disturbances to your neighbors, Mr. Lewis sent the above mentioned letter to you, a copy of which is enclosed. The parties have continued, even after Mr. Lewis letter. Given your refusal to accept that letter the Association has been given no choice but to proceed with an arbitration action against you. The arbitration petition was filed 3 days after the date the letter was mailed. It appears that the petition for arbitration and the pre-arbitration notice may have been mailed on the same date. Therefore, the letter cannot be considered the notice required by section (4)(b), Florida Statutes, for the purpose of this arbitration action. The only disturbance mentioned in the petition for arbitration was a party held by respondent on June 19, Although the petitioner filed an amendment to the petition, the petitioner did not amend the factual allegations to allege that any parties had occurred after the respondent s receipt of the July 5, 2005, letter. The party on June 19, 2005, occurred before the respondent received the any pre-arbitration notice. The only notice the respondent received was on July 5, 2005, and it did not advise that an arbitration action would be filed if the respondent had any more raucous parties, it simply stated that because the respondent had a party on June 19, 2005, after the date the letter the respondent never received was mailed, a petition for arbitration would be filed. A notice received after the violation has occurred, informing the respondent of the 3

4 filing of a petition for arbitration, cannot be considered the pre-arbitration notice required by section (4)(b), Florida Statutes. Of course, should the respondent have any raucous parties in the future, the July 5, 2005, letter, along with the May 5, 2005, letter that was enclosed, would serve as appropriate pre-arbitration notice. The respondent has now been advised of the specific nature of the dispute and has been given an opportunity to correct it by refraining from hosting any more raucous parties. Further, the respondent is aware that if he hosts another such party, a petition for arbitration could be filed, which ultimately could result in the losing party paying the costs and attorney s fees of the prevailing party. Therefore, based on the foregoing, it is ORDERED: The above-styled case is hereby dismissed without prejudice for failure to comply with section (4)(b), Florida Statutes. 4

5 DONE AND ORDERED this 29th day of July, 2005, at Tallahassee, Leon County, Florida. Diane A. Grubbs, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Copies furnished to: Jed Frankel, Esquire PHILLIPS, EISINGER & BROWN Presidential Circle 4000 Hollywood Boulevard, Suite 265-South Hollywood, Florida Attorney for Petitioner Ernie Fernandez Collins Avenue Unit 1222 Sunny Isles Beach, Florida