STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION COOPERATIVE Peter Zimmerman and Gerald Parsons, Petitioners, v. Case No. 2015-04-7605 Norfolk House, Inc., Respondent. / FINAL ORDER OF DISMISSAL On October 26, 2015, Peter Zimmerman and Gerald Parsons (Petitioners) filed a Petition for Mandatory Non-Binding Arbitration, naming Norfolk House, Inc. (the Association) as Respondent. The petition alleges the Association failed to provide timely access to its official records, in violation of section 718.111(12), Florida Statutes. By letter dated September 16, 2015, counsel for Petitioners made a request to inspect the records of the Association. By letter dated October 1, 2015, the Association s registered agent and treasurer, who are one and the same and who owns Apt. 5 within the cooperative, replied to counsel for Petitioners. As pre-arbitration notice required by statute, 1 Petitioners filed the following redacted email: 1 Section 719.1255, Florida Statutes, provides, Alternative resolution of disputes. The Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation shall provide for alternative dispute resolution in accordance with s. 718.1255. Section 718.1255(4)(b), Florida Statutes, provides: (b) The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents: Page 1 of 6
1. Advance written notice of the specific nature of the dispute; 2. A demand for relief, and a reasonable opportunity to comply or to provide relief and 3. Notice of the intent to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Failure to include the allegations or proof of compliance with these prerequisites requires dismissal of the petition. Page 2 of 6
From the redactions it could not be determined who sent the above email. Given the redactions, it also was unclear whether the email relates to the instant case, because only Zimmerman appears in the subject line. The email scheduling attempt with Sandra Knights also was not filed with the petition. The October 12, 2015 email response referenced above also was not filed with the petition. Finally, and most importantly, the above email made the following statements, If the Records are not made available for our review within 5 days from today we will have to continue with further action. In the instance [sic] this is not confirmed by end of business Friday Page 3 of 6
October, 16, 2015, we will proceed accordingly. These statements do not meet the third element of statutory pre-arbitration notice. They do not specifically state an intent to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Given the foregoing, on November 24, 2015, an Order to Show Cause was entered requiring Petitioners to show cause, no later than 5:00 p.m. on December 7, 2015, why the petition should not be dismissed for failure to provide pre-arbitration notice that complies with all of the requirements 718.1255(4)(b), Florida Statutes, and that pre-dates the filing of the petition, failing which the petition would be dismissed without further notice. After 5:00 p.m. on December 7, 2015, counsel for the Association emailed a response to the Order to Show Cause. The response is untimely as it was received after 5:00 p.m., and it was filed by email which is not permitted under the Rules of Procedure. 2 However, even if Petitioners response to the Order to Show Case had been both timely and properly filed, it would not show proper pre-arbitration notice was given under the statute. With his response to the Order to Show Case, counsel for Petitioners filed his Affidavit to Show Cause. Attached to the affidavit is the same inadequate pre- 2 In pertinent part, Rule 61B-45.010, Florida Administrative Code, provides: (4) Filing shall mean receipt by the Division during normal business hours or by the arbitrator during the course of a hearing. Pleadings including the initial petition or other communications may be filed by regular hard copy or facsimile, and if filed by facsimile, a hard copy of the pleading or other communication need not be filed with the arbitrator; however, the party using facsimile filing bears the burden of ensuring that the pleading or other correspondence has actually been filed with the arbitrator. If a document is filed via facsimile, the facsimile confirmation sheet shall be evidence of the date on which the Division received the document. A facsimile copy is filed within the meaning of this rule when the facsimile copy of the document is received by the Division. (5) Any pleading or other document received after 5:00 p.m. shall be deemed filed as of 8:00 a.m. on the next regular business day. Page 4 of 6
arbitration notice document discussed above, but without the redactions. In the Affidavit, Petitioners counsel further argues that he orally gave the Association proper notice of the intent to file an arbitration petition or other legal action in the absence of a resolution of the dispute, in a telephone conversation with the Association s treasurer on October 9, 2015. Prior arbitration cases have held, Pre-arbitration notice must be in writing. Therefore, verbal communication was insufficient. Carr v. La Brisa Ass n, Inc., Arb. Case No. 2013-02-4186, Final Order of Dismissal (July 2, 2012) (quoting Saar v. Wellesley at Lake Clarke Shores Homeowners Ass n, Inc., Arb. Case No. 2009-03- 4854, Final Order of Dismissal (July 29, 2009)(Affidavit of counsel for Petitioners averred that counsel for parties met on several occasions and discussed settlement, and during discussions, counsel informed Respondent of possibility of legal action if resolution could not be reached. Held: verbal communications not proper prearbitration notice). Consequently, Petitioners have not provided pre-arbitration notice that complies with the statute, and according to the statute, failure to do so requires that the petition be dismissed. Therefore, based upon all of the foregoing, it is ORDERED: The petition is DISMISSED, without prejudice, for failure to provide pre-arbitration notice that complies with all of the requirements 718.1255(4)(b), Florida Statutes, and Arbitration Case No. 2015-04-7605 is closed. DONE and ORDERED this 10 th day of December, 2015, at Tallahassee, Leon Page 5 of 6
County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1030 Phone: 850-414-6867; FAX: 850-487-0870 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and by U.S. mail, postage prepaid, to the following person this 10 th day of December, 2015: Stuart P. Schneider, Esq. Rajtar & Associates, P.A. 2004 Polk Street Hollywood, Florida 33020 Facsimile: 954-639-9575 Attorneys for Petitioner Glenn Lang, Arbitrator Page 6 of 6