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 CLARENCE C. COATS, III, Petitioner, v. Case No JONATHAN S BAY ASSOCIATION, INC., Respondent. / NOTICE OF REASSIGNEMENT OF ARBITRATOR AND FINAL ORDER OF DISMISSAL Notice of Reassignment The undersigned hereby gives notice that this case has been reassigned. Therefore, all future pleadings and other communications should be directed to the attention of the undersigned. Final Order of Dismissal On May 30, 2012, Petitioner Clarence C. Coats, III, filed a Mandatory Non- Binding Petition naming Jonathan s Bay Association, Inc. (Association) as respondent. As paraphrased below, Petitioner alleges the following: 1. Petitioner was improperly fined in for permitting a contractor to work on a Sunday; 2. On three occasions, September 7, October [no date provided], and December 9, 2011, the Association failed to provide Petitioner timely access to the Association s official records. Access to records was made on a limited basis on February 2, 2012; 3. Denial of right to vote on two occasions [dates not provided]; and 4. The Association has failed to provide a timely response to a written inquiry related to alleged material alterations to the condominium property. 1

2 On June 1, 2012, the previously assigned Arbitrator entered an Order to Supplement Amended Petition, informing Petitioner that disputes pertaining to fines and the failure of the association to respond to written inquiries cannot be arbitrated, pursuant to section , Florida Statutes, and directing Petitioner to: 1. Submit the $50.00 filing fee; 2. File an amended petition alleging the facts in support thereof with greater specificity and attach proof thereof; 3. File a copy of the amended petition for each named respondent; 4. File proof of providing the Association with the required pre-arbitration notice; 5. File a complete set of the Association s governing documents, including amendments thereto; 6. File a copy of the pertinent portions of the governing documents for service upon the Association; and 7. File copies of the documents upon which Petitioner s complaint(s) are based. The Order included a notice advising Petitioner that failure to comply with the Order would result in the dismissal of the petition without prejudice and without further notice to Petitioner. On June 11, 2012, Petitioner filed a response to the Order. The response included the filing fee, an amended Mandatory Non-Binding Petition with one copy, partial copies of the condominium s governing documents, a copy of Petitioner s prearbitration notice, and various other documents. Petitioner has provided copies of 2

3 several amendments to portions of the Declaration of Condominium, but has not provided a copy of the complete Declaration. In the amended Mandatory Non-Binding Petition, as paraphrased below, Petitioner alleges the following: 1. Petitioner was improperly fined for permitting a contractor to work on a Sunday; 2. On three occasions, September 7, October [no date provided], and December 9, 2011, the Association failed to provide Petitioner timely access to the Association s official records. Access to records was made on a limited basis on February 2, 2012; 3. Denial of right to vote on two occasions [dates not provided]; and 4. The Association has made material alterations to the condominium property without obtaining the approval of the membership and failed to respond to written inquiries about alterations to the condominium property. Pre-arbitration notice The pre-arbitration notice provided by Petitioner consists of a letter from Petitioner to the Association s Board of Directors, dated March 28, In it, Petitioner asserts that by changing the paint color of the gate and gutters, the association has made a material alteration to the common elements without obtaining approval of the membership and in violation of section (2), Florida Statutes. The letter makes no mention of the disputes involving fines, the failure to provide timely access to association records, or the denial of Petitioner s right to vote. The letter ends with the statements: My intent is to find a solution to this problem before I proceed with formal complaints, etc. If I do not receive a response within 14 days, I will assume that you have no interest in giving the owners the 75% vote the law requires. Section (4)(b), Florida Statutes, requires that the petition recite and have attached thereto, supporting proof that the petitioner gave the respondent: 1. Advance written notice of the specific nature of the dispute; 3

4 2. A demand for relief, and a reasonable opportunity to comply or to provide the relief; and 3. Notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Section (4)(b), Florida Statutes, further provides that failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition without prejudice. Because Petitioner s pre-arbitration notice to the Association s board of directors mentions only the dispute about material alterations to the common elements, the disputes in the Petition that pertain to matters other than material alterations to the common elements must be dismissed, as required by section (4)(b), Florida Statutes. Because Petitioner s pre-arbitration notice makes a vague reference to proceeding with formal complaints, etc. and does not specify what legal action Petitioner intends to take, the dispute that pertains to material alterations to the common elements must be dismissed, as required by section (4)(b), Florida Statutes. Partial Copies of the Association s Governing Documents Rule 61B (3), Florida Administrative Code, states, in pertinent part: In order to file a petition for arbitration, a petitioner must use DBPR FORM , MANDATORY NON-BINDING ARBITRATION PETITION FORM, incorporated by herein by reference and effective The mandatory non-binding petition form further instructs Petitioner to: [A]ttach one complete copy of the current bylaws, articles of incorporation, declaration of condominium and rules and regulations, including any amendments to each, and a copy of pertinent portions of the documents for each named respondent. Petitioner has not filed a complete copy of the declaration of condominium. Petitioner has filed copies of documents that state on their faces that they are amendments to the Declaration, but has not filed the Declaration itself. 4

5 Petitioner asserts that the Association has made a material alteration to the common elements without obtaining approval of the membership, in violation of section (2), Florida Statutes, which states, in pertinent part: Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions (Emphasis added) Petitioner s assertions imply that the declaration of condominium does not specify the procedure for approval of material alterations, and that therefore, the provision of section (2), Florida Statutes, requires approval by 75 percent of the total voting interests. The amendments provided by Petitioner do not address alteration or addition to the common elements; however, they are titled as amendments to sections 3, 11, and 17 of the Declaration. Presumably, the complete Declaration contains more than these three sections, and might contain provisions addressing alterations or additions to the common elements. Petitioner has not provided a full copy of the Declaration, which is a key document upon which Petitioner s complaint is based. In failing to provide a complete copy of the declaration of condominium, Petitioner has failed to comply with Rule 61B (3), Florida Administrative Code, and with the previous Arbitrator s order to file a complete set of the Association s governing documents, including amendments thereto, and to file copies of the documents upon which Petitioner s complaint(s) are based. Rule 61B (1), Florida Administrative Code, states: 5

6 Florida. The failure or refusal of a petitioner to comply with any lawful order of the arbitrator or with a provision of these rules shall result in a dismissal of the petition or individual claims or imposition of costs and attorney s fees, or both, as appropriate, where such failure is deemed willful, intentional, or as a result of neglect. The dismissal of any petition pursuant to this rule shall not be considered a decision on the merits of the petition. Therefore, based on the foregoing, it is ORDERED: Arbitration case number is hereby DISMISSED. DONE AND ENTERED this 2 nd day of July, 2012, at Tallahassee, Leon County, Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Division of Condominiums, Timeshares and Mobile Homes Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: FAX: 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 2 nd day of July, 2012: Thomas M. Dryden, Esquire 1705 Colonial Blvd., Ste B3 Fort Myers, FL Clarence C. Coats, III 7714 Deer Run Dr. Henryville, IN Leslie O. Anderson-Adams, Arbitrator 6