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 GARDEN-AIRE VILLAGE SEA HAVEN, INC., Petitioner, v. Case No RANDY NORRIS and LAURA NORRIS, Respondents. / FINAL ORDER DISMISSING PETITION FOR ARBITRATION The petitioner filed this action for non-binding arbitration, alleging that respondents Randy and Laura Norris are the fee simple owners of Unit number 1020 of Garden-Aire Village Sea Haven and took title to their unit on or about November, The petitioner also alleges that pursuant to Article 10, Section (b) of the Declaration of Condominium of Garden-Aire Village Sea Haven, Inc., at least one person over the age of fifty-five (55) years of age must be a permanent occupant of each unit. Persons under the age of fifty-five (55) but over the age of fifteen (15) may occupy the unit as long as at least one of the occupants is over the age of fiftyfive (55) years. The association asserts that it is a housing for older persons community within the meaning of 42 U.S.C et seq (the Fair Housing Act). Children under the age of fifteen (15) are permitted to visit and temporarily reside in the condominium for a period of time not in excess of 30 days in one calendar year or any consecutive 12 month period. According to the petition, respondents submitted an Application for Purchase to the board of directors of the association, upon which application, respondents agreed as a condition of ownership to abide by the declaration of condominium. Based upon the respondents submission 1

2 of the Application for Purchase, the respondents were accepted for occupancy by the association, despite the fact that neither of the respondents were over the age of fifty-five (55). 1 Respondents began occupying the unit seasonally in about November In July of 1996, respondent Laura Norris gave birth to a daughter, who began residing seasonally in the unit with the respondents on November 1, A prior petition based on the same dispute was filed by the association with the Division of Florida Land Sales, Condominiums, and Mobile Homes (Arbitration Case Number ). That petition was dismissed on July 23, 1997, without prejudice to refile, based upon the fact that the respondents had filed a complaint with the Broward County Human Rights Division, and the investigation was still pending. The arbitrator cited the general principle that when two actions based on the same cause of action are pending, jurisdiction vests in the court from which service of process is first perfected. See, Bayou Breeze Condominium, Pensacola Executive House Condominium Inc., v. Wilfort and Roush, Arb. Case No , Final Order of Dismissal (Feb. 21, 1997), and BCPA Condominium Association, Inc. v. Huggins, Arb. Case No , Final Order (June 21, 1993). The respondents also filed a complaint with the Florida Commission on Human Relations, Case No. FCHR 97-WO22H; HUD No The investigation on this case 1 The arbitrator has attached a copy of an order issued in another case, Lake Tippecanoe Owners Association, Inc. v. Swain, Arb. Case No , Summary Final Order (September 5, 1994), which may or may not have application to the facts ultimately determined in the instant case. In Lake Tippecanoe, it was determined that because the respondent s unit had never been in compliance with the requirement that each unit must be occupied by at least one person age 55 or older, the unit owner could later allow another family member to move in with her who was also under the age of 55, since her unit was not required to be, or to become, one of the 80% of the units containing an occupant age 55 or older. 2

3 is still pending. The petitioner asserts that the Florida Commission on Human Relations was required to issue within 100 days a determination of whether or not reasonable cause exists to believe that a discriminatory housing practice occurred, and that the 100 day period ended on or about August, However, federal courts have held that the passage of the 100 day period without issuance of a determination does not terminate any rights the complainant may have under the Fair Housing Act. See, Baumgartner v. HUD, 960 F.2d 572, 577, 578 (6th Cir. 1991). The petition asks the arbitrator to order the respondents to comply with the age restrictions contained in the governing documents, to remove their minor child from the subject unit, and to award the association its costs and reasonable attorney s fees incurred in connection with the arbitration. The only disputes eligible for arbitration are those which fall within the definition of dispute set forth in Section (1), Florida Statutes. The pertinent portion of that section (as amended, effective October 1, 1997) provides,... Dispute does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property. (Emphasis added) Prior to October 1, 1997, the Division had the authority to hear cases involving eviction of tenants. The word tenant is defined as [a] dweller in a place; an occupant, and [o]ne who holds or possesses lands, tenements, or sometimes personal property by any kind of title. 2 2 The American Heritage College Dictionary, 3rd Ed.(1997). 3

4 Tenant is further defined as [i]n the broadest sense, one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will, or otherwise. 3 In the present case, the petitioner primarily seeks the removal of an unapproved tenant or non-owner occupant from the unit. Consequently, this dispute is not within the arbitrator s jurisdiction. 4 Rule 61B , Florida Administrative Code, provides that the arbitrator shall reject a petition if it is determined to be outside the jurisdiction of the division. Accordingly, the petition will be dismissed. Dismissing this petition for lack of subject matter jurisdiction will not, however, leave the association without a remedy, if it chooses to pursue the matter. Rule 61B (2), Florida Administrative Code, provides that the arbitrator shall reject a petition if it is determined to be outside the jurisdiction of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, Arbitration Section. It is therefore ORDERED: The petition for arbitration filed in case number is DISMISSED for lack of jurisdiction and may be filed in court. 3 Black s Law Dictionary, Abridged 5th Ed. (1983). 4 See, Oriole Gardens Condominium Two Association, Inc. v. Gelman, Arb. Case No , Final Order Dismissing Petition for Arbitration, (March 2, 1998); Bayshore-On-The-Lake Condominium Apartments, Phase III Owners Association, Inc. v. Cavalcante, Arb. Case No , Final Order Dismissing Petition for Arbitration, (March 26, 1998); Indian Pines Village Condominium Association, Inc. v. Innocent, Arb. Case No , Final Order Dismissing Petition for Arbitration (May 1, 1998). 4

5 Florida. DONE AND ORDERED this 5th day of June, 1998, at Tallahassee, Leon County, Leslie O. Anderson-Adams, Arbitrator Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to: Thomas A. Groendyke, Esq., Fleming, O Bryan & Fleming, P.A., P.O. Drawer 7028, Fort Lauderdale, FL , and Randy and Laura Norris, 2731 N.E. 14th St., Unit # 1020, Pompano Beach, FL 33062, this 5th day of June, Leslie O. Anderson-Adams, Arbitrator 5