STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Pompano Beach Club North Association, Inc., Petitioner, v. Case No. 02-5892 William T. Freyvogel, Respondent. / SUMMARY FINAL ORDER This order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. On December 5, 2002, Pompano Beach Club North Association, Inc. (petitioner or association) filed a petition for mandatory non-binding arbitration, naming William T. Freyvogel as respondent. The petition alleges that the respondent maintains a dog in his unit in violation of pet restrictions contained in article 10.09 of the declaration of condominium, as adopted in April 1998. The association seeks permanent removal of the dog pursuant to those pet restrictions and payment of a fine imposed as a result of the alleged pet violation. The respondent filed an answer, counterclaim and motion to conduct discovery on January 3, 2003. Respondent s counterclaim and motion for discovery were denied in the arbitrator s order entered on February 19, 2003. This order additionally denied three of the respondent s 1
asserted defenses and ordered him to produce evidence establishing that his dog qualifies as an exemption to the dog prohibition pursuant to a grandfather clause contained in article 10.09. On March 5, 2003, the respondent filed a letter stating that he did not acquire his current dog until after April 1998, the date on which the declaration was amended to include the prohibition against dogs. As such, the exemption defense failed. Other remaining issues were discussed at a status conference held, via telephone, on March 19, 2003, at 10:00 a.m. The association was represented by Bruce Harris, Esquire, and the respondent, William Freyvogel, Esquire, represented himself. At this conference, the association was warned that since the respondent did not receive notice of the hearing where the fine was imposed and because the association could not successfully demonstrate that the dog was on the condominium property ten days after notification of the violation in order to justify imposition of the fine, the fine would most likely be disallowed. Additionally, the respondent alleged that the amendment prohibiting dogs on the condominium property and the amendment reducing the minimum passage rate for adopting amendments to the declaration were passed improperly and therefore unenforceable. Due to the respondent s allegations regarding the validity of the amendments, he was ordered to submit documentary evidence to establish that both the 1997 passage rate amendment ( 1997 amendment ) and the 1998 dog prohibition amendment ( 1998 amendment ) were passed improperly. This information was received on April 16, 2003. The respondent contends that the 1997 amendment 2
was not properly adopted because: 1. the amendment was not passed at a duly noticed unit owners meeting, as required by section 718.112(2)(d)4., Florida Statutes; 2. the amendment was not approved by a resolution of adoption, as required by section 12.2 of the declaration of condominium and section 8.2 of the bylaws; and 3. the amendment was allegedly passed using proxies that violated section 2.6 of the by-laws. Additionally, the respondent contends that the 1998 amendment was not properly adopted because: 1. the amendment was not passed at a duly noticed unit owners meeting, as required by section 718.112(2)(d)4., Florida Statutes; 2. the amendment was not approved by a resolution of adoption, as required by section 12.2 of the declaration of condominium and section 8.2 of the bylaws; 3. the amendment was allegedly passed using proxies that violated section 2.6 of the by-laws; and 4. the amendment was allegedly passed with a vote of only 186 unit owners (64%), rather than the required 217 votes (75%) and/or 232 votes (80%). Respondent argues that both the 1997 and 1998 amendments are invalid in that they were not adopted at duly noticed unit owner meetings, as required by section 718.112(2)(d)4., Florida Statutes. While the minutes of the meetings that discussed these amendments are entitled Board of Directors Meeting, it is clear from reading the minutes and looking at the activities that occurred at these meetings that unit owners were in attendance, even if not specifically identified in the heading. The arbitrator finds that these meetings operated as combined board of directors and unit owner meetings and technical mistakes in titling the meetings will not operate to invalidate all actions which occurred at the meetings. Accordingly, this argument is 3
rejected for both the 1997 and 1998 amendments. Respondent s second argument alleges that both the 1997 and 1998 amendments were not approved by a resolution of adoption, as required by section 12.2 of the declaration of condominium and section 8.2 of the by-laws. The arbitrator finds no legal merit in this argument; it is therefore rejected regarding both amendments. Respondent s third argument alleges that both amendments were allegedly passed using proxies that violated section 2.6 of the by-laws, which prohibits an individual to hold more than five proxies. The respondent contends that only board members attended the meetings where these amendments were passed and that if each director held the maximum number of five proxies and also cast his or her personal vote in favor of the amendments, the maximum number of votes validly cast in this manner would not support the adoption of either amendment. However, it has already been established that unit owners attended these combined unit owner/board member meetings. Additionally, the respondent admits that it is unclear from the minutes if any of the seven board members actually held proxies at the April 8, 1997 meeting which passed the 1997 amendment. The minutes from this meeting merely indicate that proxy votes were counted and a total of 235 votes in favor of the amendment were received; however, the minutes do not indicate precisely how many of those 235 votes were proxy votes or how many proxies were held by each individual. As a result, the respondent has not established that a proxy violation occurred in adopting the 1997 amendment. Similarly, the minutes and supporting documentation from the April 14, 1998 4
meeting which addressed the 1998 amendment also fail to explicitly state how many proxy votes were received or how many proxies each individual held. Without this information, the arbitrator cannot rule that the amendments were passed improperly and are therefore unenforceable. Accordingly, the respondent has failed to proffer sufficient evidence from which to conclude that a proxy violation occurred in adopting either the 1997 or the 1998 amendments, and, as a result, the respondent s argument alleging proxy violations is rejected. The respondent s remaining argument alleging that the 1998 amendment was adopted without the requisite minimum number of unit owner votes is also found to be without merit considering the rulings above. Therefore, the respondent has failed to establish that either the 1997 or the 1998 amendments were passed improperly and, as such, the respondent is found to be in violation of article 10.09 of the declaration of condominium by maintaining a dog in his condominium unit. Finally, the arbitrator concludes that the fine imposed by the association for the respondent s violation of the pet policy is not warranted. The respondent did not receive notice of the hearing where the fining committee recommended the imposition of the fine, as required by section 718.303(3), Florida Statutes. Moreover, the association failed to produce evidence that demonstrated that the respondent s dog was actually on the condominium property ten days after notification of the violation, which is required to justify imposition of the fine. Accordingly, the fine is disallowed. Due to the voluminous filings submitted in this case, the parties are encouraged to settle the issue of attorney s fees without the necessity for filing 5
motions for attorney s fees and costs, as this will only serve to increase the award to be paid by the non-prevailing party. It is therefore ORDERED: Effective immediately, the respondent shall cease and desist from bringing his dog onto the condominium property. Respondent shall also fully comply with the pet restrictions contained in article 10.09 of the declaration of condominium in the future. DONE AND ORDERED this 15 th day of May 2003, at Tallahassee, Leon County, Florida. Melissa Mnookin, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail and facsimile to the following persons on this 15 th day of May 2003: Bruce A. Harris, Esq. Randall K. Roger & Associates, P.A. 621 N.W. 53 rd Street Suite 300 Boca Raton, Florida 33487 Fax (561) 988-1318 William T. Freyvogel, Esq. c/o Adams, Porter & Radigan, Ltd. 1650 Tysons Blvd., Suite 700 McLean, Virginia 22102 Fax (703) 448-8144 6
Melissa Mnookin, Arbitrator Right to Appeal As provided by section 718.1255, F.S., a party which is adversely affected by this final order may appeal by filing a petition for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. This order does not constitute final agency action and is not appealable to the district courts of appeal. Attorney s Fees As provided by section 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 7