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 MILLER SIXTY-SEVEN TOWNHOUSES CONDOMINIUM ASSOCIATION, INC. Petitioner, v. Fees Case No Rel. Case No GEORGE ARIAS, MIDGALIA VELEZ, AND JOSE PINEDA, Respondents. / FINAL ORDER ON ATTORNEY S FEES AND COSTS This cause comes before the undersigned on the Petitioner s Motion for Award of Attorney s Fees and Costs filed on March 20, 2006, in which the petitioner requested attorney s fees in the sum of $2, and costs in the amount of $ totaling $2, An order permitting response was entered on April 6, Respondents reply was filed on April 10, Petitioner s reply was filed on April 25, The motion for attorney s fees arose out of a petition for arbitration filed on November 15, 2005, by the Miller Sixty-Seven Townhouses Condominium Association, 1 Respondents essentially reiterated respondents answer to the petition in the underlying case and made additional allegations regarding petitioner s failure to respond to respondents attempts to comply with the Summary Final Order requiring interview and signing of condominium documents with respondent s tenants. 2 Petitioner reiterated the findings of the Summary Final Order of the underlying case and alleged that respondents had complied with the requirements of the order. 1

2 Inc., alleging that respondent, George Arias, entered into an improper lease agreement with respondents Migdalia Valez and Jose Pineda. Specifically, Mr. Arias: utilized a lease application form other than the association s approved form; failed to submit a complete lease agreement to the association; failed to have the tenants sign the acknowledgement of the association s rules and regulations; and submitted a security deposition less than the association deemed appropriate. The answer filed by the respondents on December 14, 2005, admitted to the facts forming the basis for the alleged violations. The petitioner filed a reply to the answer on December 16, An order requiring petitioner s response to respondents motion for mediation was issued on December 20, 2005, and an order requiring service on respondent, Jose Pineda, was issued on December 26, On December 29, 2005, the petitioner filed a response respondents motion for mediation. On January 20, 2006, the petitioner filed a notice of filing a response to the order requiring service. On March 8, 2006, a summary final order was issued finding that the respondents were in violation of the association s governing documents requiring written consent and approval of tenants prior to occupancy. Pursuant to section (4)(k), Florida Statutes, 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. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 1849 (2001), the U.S. Supreme Court held that to be a prevailing party the litigant must have obtained a judgment on the merits, consent decree, or some similar form of judicially sanctioned relief, applied generally to all fee-shifting statutes that use the prevailing party terminology. In Brown-Myrtil v. Oakland Forest Club Condominium 2

3 Association, Inc., Arb. Case No , Final Order on Attorney s Fees and Costs (November 30, 2000), the arbitrator found that the petitioner had succeeded on a significant issue in litigation even though she had not obtained all the relief requested. In the case at hand, the respondents admitted to the facts forming the basis for three of the four violations alleged by the association and the arbitrator found that none of the circumstances explained by the respondents constituted a legal excuse or defense as to the requirements of the association s governing documents relating to prior approval of tenants and lease documents. However, the arbitrator did find that the association had no authority to require a security deposit in excess of that required by the condominium s lease agreement. 3 In that the summary final order substantially granted the relief requested by the petitioner an award of attorney s fees and costs is appropriate. Therefore, the only issue to be decided by the arbitrator is the reasonableness of the attorney s fees and costs. In Florida Patient s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985), the Supreme Court articulate[d] specific guidelines to be followed in setting attorney s fees and adopted the federal lodestar approach as a suitable foundation for an objective structure for setting reasonable fee awards. The lodestar figure is determined by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party. Id. at In determining the reasonableness of attorney s fees, the criteria set forth in Rule 4-1.5, Rules Regulating the 3 The respondent unit owner admitted that he was renting the unit at a below market rate to the tenants in exchange for their refurbishing of the unit. As the amount of the required security deposit was based on the rent, the association alleged that the value of the refurbishing services should be classified as consideration and included when calculating the required security deposit. 3

4 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 set forth in Rule are essentially the same as the factors set forth in Rule 61B , Florida Administrative Code. The petitioner seeks compensation for the services of Marlene Leon-Rubido, Esq. The affidavit signed by Ms. Leon-Rubido states that she has charged a rate of $ per hour for 11.7 hours of legal services. According to the affidavit, Ms. Leon-Rubido was admitted to the Florida Bar in The arbitrator finds this hourly sum to be reasonable and customary given the counsel s level of experience and complexity of the underlying case. Accordingly, the petitioner will be reimbursed at this hourly rate. Counsel s expenditure of 11.7 hours was a reasonable expenditure of time in litigating the underlying arbitration case. Additionally, Ms. Leon-Rubido s affidavit listed costs consisting of $50.00 (filing fee), $20.00 (service of process), and $45.00 (Federal Express), for a total of $ However, Hampton Court Condominium, Inc. v. Foreman, Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (April 18, 2005), the arbitrator found that costs for photocopies, mail and messenger services are not recoverable, as they are routine overhead expenses that should be incorporated into the attorney s hourly rate. 4 Thus, the federal express cost of $45.00 is disallowed. Accordingly, the petitioner will be reimbursed for costs related to litigating the arbitration case in the amount of $ However, in an emergency such fees may be recoverable. See Oceans Four Condominium Association, Inc., Arb. Case No , Final Order on Motion for Attorney s Fees and Costs (May 30, 2003), where the arbitrator approved the association s costs for express delivery charges and service of process due to the emergency nature of the proceedings where the unit owner s actions placed the associations contracts for balcony repairs in jeopardy. 4

5 Therefore, based on the foregoing, it is ORDERED: The respondents shall, within 30 days, pay to the association the total amount of $2,702.50, which represents reimbursement to the association for $2, in attorney s fees and $70.00 in costs. DONE AND ORDERED this 11 th day of May, 2006, 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

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served to the following persons by U.S. Mail this 10 th day of May, 2006: Marlene Leon-Rubido, Esq Coral Way Miami, Florida George Arias (address as provided for in underlying case) Migdalia Velez Jose Pineda 555 SW 67 th Avenue Unit 202 Miami, Florida Tonya S. Chavis, Arbitrator 6