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 SABAL CHASE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No HOWARD ROBERT ZUCKERMAN, unit owner, and MARIA E. CONSUEGRA, tenant, Respondents. / ORDER The petitioner, Sabal Chase Condominium Association, Inc., filed a petition for arbitration naming Howard Zuckerman, unit owner, and Maria E. Consuegra, tenant, as respondents. The association alleges that the tenant installed yellow foam material on the bottom of the garage door and painted the bottom half of the garage door a different color in violation of the condominium documents. The tenant filed an answer in which she asserts: Petitioner s facts, as alleged (assuming arguendo are true) do not give rise to a dispute that is properly before the department nor should respondent Consuegra, as lessee, be named as a party, where allegations stem solely from association s desire to enforce entirely cosmetic restrictions. The arbitrator notes that Ms. Consuegra has not cited or quoted any specific authority removing disputes of this nature from the authority of the arbitrator. Section , Florida Statutes, as amended effective October 1, 1997, removed from the jurisdiction of the arbitrator those cases seeking eviction of tenants; however, the division continues to handle tenant cases 1

2 not involving eviction, as this was the intent of the legislature. See, Bayview Condominium Assoc., Inc. v. Helmstetter and Degiacomo, Final Order on Request for Attorney s Fees (Dec. 3, 1998), citing the Final Bill Analysis and Economic Impact Statement of the House of Representatives, Committee on Real Property and Probate (H.B. 1981; Companion S.B. 1234) (June 10, 1997). To the extent that Ms. Consuegra might be disputing the subject matter jurisdiction of the arbitrator, it is noted that Section , Florida Statutes, provides that certain disputes must be submitted to the Division of Florida Land Sales, Condominiums and Mobile Homes for arbitration prior to the institution of court litigation. Those condominium disputes are described in the statute, which recites in pertinent part: Alternative dispute resolution; voluntary mediation; mandatory nonbinding arbitration; legislative findings. (1) DEFINITIONS. As used in this section, the term dispute" means any disagreement between two or more parties that involves: (a) The authority of the board of directors, under this chapter or association document to: 1. Require any owner to take any action, or not to take any action, involving that owner's unit or the appurtenances thereto.... Because the present dispute concerns the authority to the board to enforce the declaration of condominium with regard to the color of the garage door, which forms part of the common elements, an undivided share of which is an appurtenance to the unit here at issue, the dispute falls within the jurisdiction of the arbitrator, and is the type of dispute which has been previously addressed in arbitration. See, Oceanside Plaza Condo. Assn., Inc. v. Salussolia, Arb. Case No , Order Striking Certain Defenses (Sept. 4, 1996) and Order on Request for Clarification (Oct. 9, 1996) (case involving unit owner accused of installing exterior balcony doors with non- 2

3 conforming color); Vista Del Mar Assn., Inc. v. Lloyd, et al., Arb. Case No , Order Striking Affirmative Defenses and Summary Final Order (Feb. 20, 1998) (case where unit owner installed penthouse door which was a different color and style from all other unit doors). On the basis of the foregoing, the respondent/tenant s jurisdictional objections are found to lack merit. The tenant s answer further asserts that, at the time and date of the filing of the petition, no exterior yellow foam existed on the garage door. Further, the tenant states that she has not repainted the bottom half of the garage door in a different color. Instead, tenant has used Sabal Chase approved and supplied paint to cosmetically enhance standing floodwater stains on the area of the garage door closest to the ground. An order requiring the association to respond to the respondent s answer was issued. The association responded to that order by asserting the following: 1) the tenant has removed the exterior yellow foam material since the filing of the petition; and 2) the door remains a different color in violation of the association s governing documents. Since both parties agree that the yellow foam material has been removed, this issue is no longer in dispute. Rule 61B (5), Florida Administrative Code, provides: [n]o petition shall be accepted for arbitration under these rules which involves issues which are moot, abstract, hypothetical, or otherwise lacking the requirements of a case or controversy; no dispute which is not a bona fide, actual and present dispute shall be accepted for arbitration. Therefore, the claim involving the yellow foam is DISMISSED as moot. The association s second claim is that the tenant has painted the bottom half of the garage door the wrong color. The tenant denies doing so; she states she has touched up floodwater stains with association-supplied and approved paint, but asserts that any color mismatch is due solely to fading by the sun and/or other environmental elements. 3

4 It is therefore ORDERED: 1. The petitioner s claim regarding the yellow foam material on the garage door is hereby DISMISSED as moot. 2. The arbitrator intends to conduct a final hearing by telephone conference to resolve the claim regarding the painting of the garage door. A telephone hearing can generally be scheduled more quickly than if travel by the arbitrator were required. The parties shall confer and select three mutually-acceptable hearing dates between August 13, 1999, and September 10, If the parties are unable to make contact to agree upon a hearing date, they shall each independently furnish the arbitrator with proposed dates. The parties shall advise the arbitrator of the proposed dates by July 28, The tenant/respondent and counsel for the association will appear for the hearing at the office of counsel for the association, in a room equipped with a speakerphone, and the arbitrator will conduct the hearing from Tallahassee. The unit owner/respondent may participate by telephone from New Jersey and should provide his telephone number to the arbitrator by August 12, The arbitrator will initiate the conference call. If a party has an objection to this procedure, it must file its objection by July 23, Each party shall file the following with the arbitrator by not later than July 30, 1999, and provide a copy to each other: (a) all exhibits and documents, which shall be prenumbered, proposed to be introduced into evidence at the hearing; the association shall include in its exhibits a color photograph of the garage door in question as well as color photographs of at least two other garage doors in the condominium 4

5 (b) the names and addresses of all witnesses intended to be called at the hearing and a summary of their expected testimony. An arbitration hearing is a somewhat formal procedure. It is akin to the hearing procedures found in administrative hearings and trials. Unlike mediation or settlement conferences, arbitration hearings allow the parties to talk to the arbitrator or the witnesses, not to each other. The presentation of evidence is somewhat formal in the sense that facts must be presented through the testimony of witnesses and introduction of documents, not through a party telling the facts to the arbitrator. This does not mean that a party may not testify in his behalf, but to do so he or she must be listed as a witness and subject to questioning by the other party. To assist the parties in understanding this process, the arbitrator advises them of the following concerning the final hearing: It is the responsibility of each party to prove the facts that support his or her position on the issues by calling witnesses to testify, questioning the other party s witnesses, and introducing documents into evidence. Parties, including unit owners, may present evidence by testifying under oath. As a witness, they are subject to cross-examination by the other party. The parties may only ask each other questions during a hearing if one of them is called as a witness, sworn in, and testifies. A witness must have firsthand knowledge of the facts to which he testifies. Hearsay is not admissible unless it falls under a specific hearsay exception, as determined by the arbitrator. Hearsay is an out of court statement offered by the person testifying to prove the truth of the matter asserted. If for example, a witness statement as to what he heard another person say is elicited to prove the truth of what that other person said, it is hearsay. 5

6 Documentary evidence may also be considered hearsay unless it falls under a specific hearsay exception, as determined by the arbitrator. The fact that a party has on its exhibit list a document which helps to prove that party s case does not mean that the document will be admitted into evidence by the arbitrator. Moreover, merely because the parties may stipulate to the authenticity of documents does not mean they will automatically be admitted into evidence by the arbitrator. Generally, even if the authenticity of a document (such as a report or a letter) is stipulated to, the person who prepared the document must be called as a witness to testify to the truth of the matters asserted in the document, unless the document falls under a specific hearsay exception. Otherwise, the document may be considered inadmissible. Hearsay evidence may be used to supplement or explain other evidence, but it shall not be sufficient in and of itself to support a finding. Irrelevant testimony will not be considered by the arbitrator. Any other oral presentations by a party, such as opening and closing statements, are NOT factual evidence and cannot be used to determine the facts that are in dispute. Both parties may present arguments of law by oral or written presentation if not waived. Legal arguments may be used as a basis for the arbitrator s legal conclusions. The arbitrator will make his decision based on the evidence presented at the hearing, as well as any facts to which the parties agree. Generally, the taking of evidence closes at the conclusion of the hearing, with rare exceptions. Parties should be prepared to present all of their evidence at the hearing, as evidence submitted after the hearing may be stricken by the arbitrator. It is the responsibility of the party calling a witness to provide a qualified interpreter for any witness requiring an English language interpreter. 6

7 No postponements shall be granted except on the showing of good cause by the party seeking the postponement. Florida. DONE AND ORDERED this 14th day of July, 1999, at Tallahassee, Leon County, Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

8 Copies furnished to: Helio De La Torre, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. 201 Alhambra Circle, Suite 1102 Coral Gables, FL Attorney for petitioner Howard Robert Zuckerman 129 Monroe Avenue Edison, NJ Respondent/unit owner Maria E. Consuegra, Esq C SW 109 Road Miami, FL Respondent/tenant 8