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 Juno Beach Condominium Association, Inc., Petitioner, v. Case No Phillip and Juanita Abood, Respondents. / ORDER ON RESPONDENTS MOTION TO DISMISS AND FOR LIMITED DISCOVERY AND ORDER REQUIRING FINAL HEARING DATES Petitioner filed a petition for arbitration on April 24, Respondents purchased the unit as joint tenants in June According to the condominium documents, the condominium is a 55 and older community. At the time of purchase, Respondent Juanita Abood met the age restriction but Respondent Phillip Abood, her son, did not. On August 18, 2005, Respondent Juanita Abood quitclaimed her interest in the property to Respondent Phillip Abood, and the quitclaim deed was recorded on October 6, Respondents Motion to Dismiss On November 2, 2007, counsel for Respondents filed a Notice of Appearance in this case. Contemporaneously with the Notice of Appearance, Respondents counsel filed the following pleadings: 1) Motion for Continuance and Motion to Permit Limited Discovery, and 2) Motion to Dismiss. On November 26, 2007, Petitioner filed a response to Respondent s motion to dismiss. Counsel for Respondents argues in its Motion to Dismiss that this case should be dismissed because Respondent Juanita Abood quitclaimed her interest in the unit to 1

2 Respondent Phillip Abood before this case was filed, and therefore, under Florida case law, Juanita Abood is a third party over whom the arbitrator does not have jurisdiction to enter an order. Counsel for Petitioner counters Respondents argument as follows: 1. Petitioner does not address the fact that irrespective of Juanita Abood s party status, Phillip Abood continues to be a party, thus the case should not be dismissed as to him. 2. Juanita Abood s quitclaim to her son is irrelevant because at the time of filing the petition, Phillip Abood was in violation of the condominium documents by residing in the unit without another person residing therein who was 55 or older. 3. At or before their date of purchase of the unit, Juanita Abood and Phillip Abood were on notice of the requirement that their unit must be occupied by at least one person who is 55 or older, because the Association sent a letter to each of them stating that in order for them to be in compliance with the condominium documents their unit must be occupied by at least one person who is 55 years of age or older. 1 In the petition, Petitioner requested as relief that the arbitrator enter an Order requiring OWNER to comply forthwith with the Governing Documents of the Association by Juanita Abood immediately becoming a resident of the unit or by PHILLIP ABOOD immediately vacating the unit. Under section (1), Florida Statutes, a case is not eligible for arbitration if the dispute primarily involves title to any unit or common element;... [or] the eviction or other removal of a tenant from a unit. Because this case does not involve the eviction or other removal of a tenant, the case is not statutorily barred from 1 See Exhibit B to Petitioner s Closing Arguments, letter to each Respondent dated June 6,

3 arbitration on that basis. See Tierra Del Sol Condominium, Inc. v. Merlucci, Arb. Case No , Final Order (July 6, 1999)(Where thrust of petition was not to remove a Respondent so much as to require an older person to live in the unit with the Respondent in order to comply with state and federal restrictions regarding 55 and older communities, petition was not one involving eviction of tenant, and therefore, was within jurisdiction of the arbitrator.) Under section (1), Florida Statutes, the arbitrator does not have jurisdiction over disputes that involve title to a unit, and therefore, the undersigned has no authority to rule on any issue relating to Respondent Phillip Abood s title to the unit. However, if the facts ultimately support the petition, one possible remedy would be to order Mr. Abood to have a person occupy the unit who is 55 or older as required by the condominium documents and to remain in compliance with the documents. Therefore, Respondents Motion to Dismiss is DENIED and Respondent Juanita Abood is DISMISSED as a party to this case as it is undisputed that she no longer has any ownership interest in the unit. Respondents Motion for Limited Discovery On October 29, 2007, Respondent Phillip Abood filed a copy of a letter dated October 24, 2007, and addressed to the President of the Association, wherein Respondent requests inspection of the official records of Petitioner relating to Petitioner s compliance with the requirements of law permitting Petitioner s exemption from the prohibition against discrimination if certain policies and procedures and documentation are maintained by Petitioner. Mr. Abood requested inspection of documents relating to six (6) areas all relating to Petitioner s status as a 55 and older community. On November 1, 2007, the president of the Association, on behalf of the Board of Directors, filed a copy of his October 29, 2007, letter responding to Mr. Abood s request 3

4 offering him three alternative days at 3 p.m. to inspect the Association s records: Wednesday, Thursday, or Friday, October 31, November 1, or November 2, respectively, and answering some of the questions Mr. Abood asked in his October 24, 2007 letter. Mr. Abood inspected the records on November 1, In its November 2, 2007, filing, counsel for Respondents assert that Petitioner may not enforce its 55 and older age restrictions, because Petitioner cannot show compliance with the policies and procedures and documentation requirements under state and federal law necessary to qualify as a 55 and older community entitled to exemption. Counsel further asserts that on November 1, 2007, when an inspection of Petitioner s official records took place pursuant to section (12), Florida Statutes, Petitioner was unable or unwilling to produce such records. In the filing, counsel for Respondents sought limited discovery of documents in eleven (11) different areas all relating to Petitioner s compliance with the requirements of law permitting Petitioner to be a 55 and older community. Mr. Abood s request for inspection of documents and counsel s request for limited discovery of documents are not identical. However, both requests relate to Petitioner s status as a 55 and older community. On November 9, 2007, the undersigned denied the request for limited discovery by counsel for Respondents until after counsel for Respondents made an official records request under section (12), Florida Statutes, to Petitioner for the documents counsel seeks. As of the date of this order, it appears counsel for Respondents has not made an official records request of Petitioner for the documents in its request for limited discovery. Final Hearing Dates In the November 2, 2007, Motion for Discovery, counsel for Respondent stated that Respondent Phillip Abood will be filing a complaint for housing discrimination with the Palm Beach County Office of Equal Opportunity and upon so filing will request abatement of this 4

5 arbitration case. On January 17, 2008, the undersigned entered an order requiring counsel for Respondents to file a status update with respect to filing a complaint for housing discrimination with the Palm Beach County Office of Equal Opportunity. As of the date of this order, counsel for Respondents has not filed a copy of a complaint filed with the Palm Beach County agency. Based upon the foregoing, Pleadings filed in this matter reflect that there are material issues of fact in dispute and that it is necessary to proceed to a final hearing. Therefore, on or before April 18, 2008, the parties shall consult with one another in order to determine three (3) alternative dates that they will both be available for a final hearing by telephone in this matter and communicate such dates to the arbitrator. 2 Upon receipt of the foregoing information, the undersigned will issue an appropriate scheduling order. Failure to comply with this order will result in the arbitrator scheduling the matter without further consultation and the arbitrator may impose sanctions on the noncompliant party or parties in accordance with rule 61B , Fla. Admin. Code. Florida. Based upon the foregoing, it is ORDERED: The parties shall comply as directed herein. DONE AND ORDERED this day of April, 2008, at Tallahassee, Leon County, Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida The parties shall also contact the arbitration section at in order to determine the arbitrator s availability. 5

6 Copies furnished by U.S. Mail to: Mark G. Keegan, Esq. John R. Sheppard, Jr., Esq. Becker & Poliakoff 625 North Flagler Drive 7 th Floor West Palm Beach, Florida FAX: Edward S. Hammel, Esq. Sachs & Sax 301 Yamato Road, Suite 4150 Boca Raton, Florida FAX: