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 Lakeside Condominium Association No. 3, Inc., Petitioner, v. Fee Case No Rel. Case No Barbara Weinberg, Respondent. / FINAL ORDER ON MOTION TO TAX COSTS AND ATTORNEY S FEES On September 8, 2009, Lakeside Condominium Association No. 3., Inc., the corporate entity responsible for the operation of the Lakeside Condominium No.3 located in Palm Beach County, Florida, moved for an award of $4, in attorney s fees and $50.00 in costs. On October 6, 2009, Dana Weinberg and Scott Weinberg filed a response on behalf of the Barbara Weinberg. On October 13, 2009, Dana Weinberg filed a copy of a power attorney by which the Respondent appointed Dana Weinberg her attorney-in-fact. On October 15, 2009, a qualified representative application was filed appointing Dana Weinberg as the Respondent s qualified representative. A telephonic case management conference was held in this matter on October 29, 2009, attended by the Association s attorney, Robert Burr, and, and by Dana Weinberg. Mr. Weinberg was directed to file by November 9, 2009 specific objections to the attorney s fees and costs claimed by the Association. As the date of this order, Mr. Weinberg has not filed any such objections. 1

2 This fees case arises from arbitration case number In the underlying case, the Association alleged the Respondent was maintaining a dog in her unit in violation of the condominium s governing documents. The Association also claimed that the dog constituted a nuisance. In her answer in the underlying case, the Respondent claimed that she was entitled under Federal, State and local law to keep the dog as an emotional support pet. The Respondent also claimed that she had filed a housing discrimination complaint with the Palm Beach County Office of Equal Opportunity (Palm Beach County OEO). Because the Respondent had filed a housing discrimination complaint, by order dated October 13, 2008, this matter was administratively closed pending resolution of the housing discrimination complaint. On April 1, 2009, the Association filed a motion to reactivate the case along with a motion for full or partial summary disposition. The Association attached to its motion a copy of the Palm Beach County OEO s Determination of No Reasonable Grounds. The Palm Beach County OEO concluded that the Respondent had not demonstrated that she was entitled to keep the dog as an accommodation under the Fair Housing Act and other applicable laws. On June 2, 2009, the Respondent filed a response to the association s motion. The arbitrator took official notice of Palm Beach County OEO s ruling. Because the Respondent did not indicate that she had appealed the ruling and because there were no material issues of fact in dispute, the underlying case was reopened and a summary final order was entered. The summary final order found that the Respondent had violated the Association s governing documents by maintaining a dog in her unit and ordered her to permanently remove the dog. 2

3 Pursuant to (4)(k), Fla. Stat., the prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney s fees in an amount determined by the arbitrator. A party is a prevailing party if it succeeds on a significant issue in the arbitration and achieves some of the benefit sought in bringing the action. See Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807, 809 (Fla. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The summary final order entered in the underlying case granted the Association its requested relief. Therefore, the Association is the prevailing party and entitled to recover its reasonable attorney s fees and costs. In her response the Association s attorney s fees and costs motion, the Respondent claims that she suffers from Alzheimer s disease which limited her ability to comprehend the underlying dispute. An arbitration proceeding is not the proper forum to argue that someone lacks the mental competency to defend a legal action. The arbitrator may not make such a ruling. The Respondent also argues that if her sons had been contacted as to the underlying dispute, this matter would have been resolved. The Respondent has not demonstrated that the Association had the duty to contact the Respondent s sons. Moreover, the undersigned is not persuaded by this argument as the Respondent was initially represented by an attorney in the underlying case who filed an answer on the Respondent s behalf. The Respondent also argues that she is not financially capable of paying an award of attorney s fees costs. The ability of the non-prevailing party to pay an award of attorney s and costs is not relevant and, therefore, may not be considered by the arbitrator. 3

4 The next issue to be decided is the reasonableness of the attorney s fees and costs claimed by the association. In Florida Patient s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the Supreme Court adopted the federal lodestar approach as the foundation for setting reasonable fee awards. This approach requires the trial court to determine a lodestar figure by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party s attorney. Fashion Tile & Marble v. Alpha One Construction, 532 So. 2d 1306 (Fla. 2d DCA 1988). In undertaking this analysis, the reasonableness of the hourly rate and the number of hours reasonably expended must be separately considered. See Rowe, 472 So. 2d at In determining the reasonableness of attorney s fees, the criteria set forth in Rule 4-1.5, Rules Regulating the Florida Bar, Rules of Professional Conduct [then Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Responsibility] should be applied. Id. at The factors for determining a reasonable attorney s fee set forth in Rule are basically the same as the factors set forth in Fla. Admin. Code R. 61B The Association seeks compensation for the legal services of Robert B. Burr, Esq. at the rates of $ and $ per hour. Mr. Burr was admitted to the Florida Bar in October of The undersigned finds that $ per hour is a reasonable rate. The Association also seeks compensation for the legal services of Chelle Konyk, Esq. at the rate of $ per hour. Ms. Konyk was admitted to the Florida Bar in October The undersigned finds that $ per hour is a reasonable rate. The Association seeks reimbursement for 13.6 hours of efforts by Mr. Burr. This time includes 3.6 hours of activities incurred prior to the initiation of the arbitration. 4

5 Recovery of attorney s fees pursuant to Section , Florida Statutes, is restricted to fees incurred in the arbitration proceeding. See Desy v. River Key Condominium Association, Inc., Arb. Case No F, Final Order (May 20, 1993). 1993)(fees incurred prior to the drafting and filing of the petition are not recoverable in the arbitration proceeding). However, as that section imposes certain requirements on a petitioner preceding the filing of the petition, including pre-arbitration notice, one hour of attorney time is routinely deemed recoverable and is hereby awarded. Rory O Neal v. Tarryton, Inc., Arb. Case No , Final Order Awarding Attorney s Fees and Costs (June 7, 2002). Therefore, the Association s requested time for Mr. Burr will be reduced by 2.6 hours. Accordingly, the Association is awarded 11.0 hours at the rate of $ per hour for Mr. Burr s efforts. The Association also seeks reimbursement for 2.5 hours of effort for Ms. Konyk s activities. The requested amount is reasonable and the Association is awarded 2.5 hours at the rate of $ per hour for Ms. Konyk s efforts. At first glance, the number hours requested in this case may appear to be excessive and unreasonable for a pet removal case. However, the petition filed in this matter was highly detailed and the Respondent raised a housing discrimination claim in her answer. Although, the arbitrator deferred to the Palm Beach County OEO on this issue, the procedural effect of the claim in the arbitration proceeding had to be addressed by the arbitrator and parties. Additionally, the Association has not sought to recover its attorney s fees incurred during the fair housing proceeding. The Association seeks to recover $50.00 in costs for the arbitration filing fee. This was a necessary cost and is awarded. Based upon the foregoing, it is ORDERED: 5

6 Within 30 days of the date of this order, Barbara Weinberg shall pay Lakeside Condominium Association No. 3., Inc. $3, DONE AND ORDERED this 22 nd day of January, 2010, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: Facsimile: Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. 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 22 nd day of January, 2010: Robert Burr, Esq. St. John, Core & Lemme, P.A Forum Place, Suite 701 West Palm Beach, FL Barbara Weinberg c/o Dana Weinberg Mangrove Drive Unit 202 Boynton Beach, FL James W. Earl, Arbitrator 6