STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION GREENTREE VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No NANCY TAGLIENTI BAUMAN, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares, and Mobile Homes convened a formal hearing in this case on February 9, The parties were duly noticed of the proceeding by pre-hearing order entered on February 4, During the hearing, the Petitioner presented the testimony of witnesses and tendered documents into evidence. Respondent did not appear. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: Stephen P. Smith, Esquire Gelfand & Arpe, P.A. Regions Financial Tower Suite Palm Beach Lakes Blvd. West Palm Beach, Florida For Respondent: Nancy Taglienti Bauman absente reo 1

2 STATEMENT OF THE ISSUE Whether the unit owned by Nancy Taglienti Bauman is vacant or occupied by at least one person that is fifty-five years of age or older pursuant to Article XIV, Section A(2) of the Declaration of Condominium. PROCEDURAL HISTORY Petitioner, Greentree Villas Condominium Association, Inc., filed a petition for non-binding arbitration on November 16, 2007, naming Nancy Taglienti Bauman, as respondent. Petitioner alleged that the unit owned by Ms. Bauman was neither vacant, nor occupied by a person who is fifty-five years of age or older despite a provision in the Declaration of Condominium which requires that a Unit, if occupied, be occupied by at least one person that is fifty-five years of age or older. As relief, Petitioner requested an order requiring Respondent to comply with the Declaration of Condominium and to have an occupant age fifty-five or older reside in the unit when the unit is occupied or to remove the underage occupants from the unit. Additionally, Petitioner requested an award of attorney s fees and costs. On November 20, 2007, an Order Requiring Answer was entered. On December 26, 2007, an Order Requiring Service was entered. On February 6, 2008, Petitioner filed a Return of Service. Respondent was served at A Eaglewood Road, Unit 254-A, Boynton Beach, Florida On February 27, 2008, an Entry of Default was entered. On March 27, 2008, Respondent filed a response. On April 8, 2008, an Order Vacating Entry of Default and Notice of Communication was entered. On April 25, 2008, Respondent filed a letter in response to the Entry of Default. On April 29, 2008, Petitioner filed a Reply to Respondent s Answer. On May 15, 2008, an Order for Final 2

3 Hearing Dates was entered. On May 19, 2008, Petitioner filed a Motion for Limited Discovery and Motion for Consideration of the Issue of Fact and For Final Hearing. On May 22, 2008, an Order Vacating Order for Final Hearing was entered. On May 28, 2008, Respondent filed a letter as an answer. On June 16, 2008, Respondent filed a letter with additional information. On July 17, 2008, an Order Vacating Order for Hearing was entered. On August 22, 2008, a Notice of Communication was entered. On September 11, 2008, Petitioner filed a Renewed Motion for Final Hearing. On October 29, 2008, a Notice of Reassignment and Order Requiring Case Management Conference was entered. On December 19, 2008, Petitioner filed suggested dates for case management conference. On December 24, 2008, a Notice of Case Management Conference was entered. On January 26, 2009, a telephonic case management conference was attempted. 1 On February 4, 2009, a Notice of Final Hearing and Prehearing Order was entered. On February 13, 2009, Petitioner filed Petitioner s Notice of Filing Final Hearing Exhibit and Witness List. On February 19, 2009, a telephonic Final Hearing was held. Petitioner was represented by Michael Gelfand, Esquire. Respondent did not appear. This order is entered after consideration of the testimony of the witnesses, documents entered into evidence, and consideration of the entire record. As of the date of this order, there has been no communication from Respondent. STATEMENTS OF FACT 1. The Petitioner is Greentree Villas Condominium, Inc. 1 Both parties were duly notified of the toll-free call-in conference line, along with the date and time of the conference. Petitioner s counsel called in at the appointed time. Respondent did not call the conference line. After waiting approximately 10 minutes, the conference was terminated by the arbitrator. 3

4 2. The Respondent is Nancy Taglienti Bauman, the owner of unit 254A of Greentree Villas, a condominium. 3. Article XIV, Section A(2) of the Declaration of Condominium provides, in pertinent part, as follows: (i) Greentree Villas, a Condominium, shall be a community of housing for older persons, as such is defined in the Federal Fair Housing Amendment Act of * * * (iii) Greentree Villas, a Condominium, shall be housing intended and operated for occupancy by at least one person fifty-five years of age or older per home. The Board shall adopt policies and procedures to carry forth this intent. 4. Respondent is the joint owner on the deed to property listed at 8674 Eagle Run Drive, Boca Raton, Florida Respondent was duly served by Residential Substitution upon Geraldine Lenti, on January 11, 2008, at the condominium unit, and Respondent was Personally Served on March 25, 2008, at 8674 Eagle Run Drive, Boca Raton, Florida At the time of the alleged violation, Respondent s daughter, Geraldine Lenti, age 31, resided in the unit. 7. At the time of the alleged violation, Respondent was age At the hearing, Petitioner s witness, Fred Hassut s, unrefuted testimony was as follows: he has visited the unit multiple times; Ms. Lenti is the only occupant of the unit; and Ms. Bauman is not in residence in the unit. CONCLUSION OF LAW Greentree Villas Condominium Association, Inc. is a condominium within the meaning of section , Florida Statutes. The undersigned has jurisdiction over the 4

5 parties and subject matter of this dispute, pursuant to section , Florida Statutes. Respondent, by her ownership of a unit at the condominium, is required to comply with all governing condominium documents. Article XIV of the Declaration of Condominium, provides restrictions on the age of individuals that may occupy the units. Article XIV of the Declaration states that the Greentree Villas shall be housing intended and operated for occupancy by at least one person fifty-five years of age or older per home. Accordingly, an individual age fifty-five or older must occupy the unit. It was unrefuted at hearing that Respondent does not occupy the unit and that Respondent s thirty-one-year-old daughter resides alone in the unit. Accordingly, Respondent is in violation of the governing documents. As relief, Petitioner seeks an order requiring Respondent to comply with the Declaration of Condominium and require that at any time the unit is occupied, that there be at least one person that is fifty-five years of age or older residing in the unit, removal of the underage occupant from the unit, and award of attorney s fees and costs. Section (1), Florida Statutes, defines disputes for the purposes of Alternative Dispute Resolution. As defined by s (1), Florida Statutes, [a] dispute does not include any disagreement that primarily involves the eviction or other removal of a tenant from a unit. Petitioner s claim for an order to require the Respondent to remove the underage occupant from the unit is such a dispute. Therefore, based on the forgoing, it is ORDERED: 1. Within sixty days of the date of this order, Respondent shall comply with the age restriction requirements of the Declaration of Condominium such that at any 5

6 time the unit is occupied there shall be at least one person that is fifty-five years of age or older residing in the unit. 2. Petitioner s claim for relief for removal of the underage occupant is DENIED for lack of jurisdiction and Petitioner may seek such relief in a court of competent jurisdiction. DONE AND ORDERED this day of March, 2009, 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 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. 6

7 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 persons on this day of March 2009: Steven P. Smith, Esquire Gelfand & Arpe, P.A Palm Beach Lakes Blvd. Suite 1220 West Palm Beach, Florida Nancy Taglienti Bauman A Eagle Road Unit 254-A Boynton Beach, Florida Tonya S. Chavis, Arbitrator 7