STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE ASSOCIATION FOR THE PLAZA OF BAL HARBOUR CONDOMINIUM, INC., Petitioner, v. Case No. 2011-01-7149 SIMON NAPARSTEK and MAGUI NAPARSTEK, his wife, Respondents. / FINAL ORDER OF DISMISSAL This dispute arose from Petitioner s (the Association) allegation that Respondents are keeping a dog in their unit in violation of the Association s Rules and Regulations which require, at paragraph 16, that written permission from the Association be obtained prior to keeping a pet in one s unit. Respondents have owned their unit and the dog since at least June, 2002. Paragraph 16 reads: (16) Pets will be allowed within the Condominium Property subject to the following restrictions: No pet may be kept in and Unit unless authorization is given in writing by the Board of Administration. Such consent, if given, shall be revocable at any time Any authorization to keep pets will expire when a member s pet dies or is disposed of. Moreover, dogs or cats which are kept in Units as of the date this Declaration is recorded... may be kept in Units subject to the terms of this paragraph, but once said dog or cat dies or is otherwise no longer kept in a Unit, the Unit Owner owning said dog or cat may not replace it with another dog or cat...
The Association filed the original petition on March 28, 2011, and the prearbitration notice, dated December 29, 2010, said the following: We have been advised that you are in continuing violation of the Association s governing documents. Specifically, we have been advised that you are maintaining a pet in your unit in violation of Article 9 of the Association s Rules and Regulations which provides, in part as follows: the Plaza is a No Pets building. Pets are not allowed to enter the premises. This applies to Owners, Lessees, guests, family and visitors. Accordingly, this letter shall serve as Final Notice that if you should fail to remove the animal from the property within 10 days from the date of this letter, the Association will proceed to file a Petition for Arbitration... or institute other appropriate legal action to enforce compliance. (emphasis in the original). Section 718.1255(4), Florida Statutes, states: (4) (a) Prior to the institution of court litigation, a party to a dispute shall petition the division for nonbinding arbitration. (b) The petition must recite, and have attached thereto, supporting proof that the petitioner gave the respondents: 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 the relief; and 3. Notice of the intention 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 without prejudice. 2
This section also requires a proper pre-arbitration notice to pre-date the filing of the petition. See Water Glades 300 Condo. Assn., Inc. v. Interco Management Services, Inc., Case No. 2006-00-1728, Order on Motion for Reconsideration (April 13, 2006), (pre-arbitration notice must be provided prior to filing of petition as its purpose is to provide the respondent an opportunity to provide requested relief without necessity of a formal legal proceeding, and where petitioner fails to provide respondent with pre-arbitration notice before filing of petition, petition must be dismissed). The violation set forth in the December, 2010, pre-arbitration notice was quite different from the violation alleged in the original petition; the petition alleged a failure to get board permission to keep a pet, the pre-arbitration notice, that Respondents violated a blanket no pets policy by keeping the pet. On January 25, 2012, the Association was ordered to amend the petition because the exhibits, the pre-arbitration notice and the allegations were inconsistent. On February 29, 2012, an amended petition was filed accusing Respondents of 2 violations; violating paragraph 16 of the rules and regulations by failing to get written permission from the board to keep their dog; and violation of paragraph 9 of the rules and regulations as amended, on March 23, 2011. The March, 2011, amendment allows service animals in the units once the owner provides written proof of medical need. which reads: Attached to the amended petition was a letter dated January 30, 2012. [w]e are requesting the necessary documentation from you in order to properly evaluate whether an accommodation is necessary for 3
you regarding your pet. 1 Paragraph 9 of the Association s Rules and Regulations, as amended on March 23, 2011, provides, in relevant part... Unit owners...are allowed to have only registered and Property Manager approved emotional support animals or service animals. They... must be prescribed (in writing) by your physician or healthcare provider or therapist, or an accredited national organization. [p]lease provide the Association with the documents and/or information set forth above within 10 days... If you fail or refuse to comply... the Association shall immediately re-commence the necessary legal action to compel your compliance pursuant to Section 718.1255, Florida Statutes. There is no mention in this letter that Respondents may have also violated other provisions in the governing documents. The January, 2012, letter giving notice of the Association s intention to file a legal action against the Respondents if the dog is not removed and the allegations in the amended petition are irreconcilable. The Association s December 29, 2010, pre-arbitration notice is the only one which predates the original petition, thus the original petition is fatally flawed and has not been corrected by the filing of the amended petition. The arbitrator has concluded that the original petition cannot be fixed. Accordingly, this case is DISMISSED and Arbitration Case No. 2011-01- 7149 is CLOSED. DONE AND ORDERED this 9 th day of March, 2012, at Tallahassee, Leon County, Florida. Leah A. Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street 1 Respondents in defense to the Association s demands to remove the dog claimed it was a service animal for which Mr. Naparstek should be accommodated. 4
Tallahassee, Florida 32399-1029 Section Telephone: 850-414-6867 Section Facsimile: 850-487-0870 Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section 718.1255, Florida Statutes. As provided by section 718.1255, Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B-45.048. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 9th day of March, 2012: Laura M. Manning-Hudson, Esq. 1675 Palm Beach Lakes Blvd., Ste. 500 West Palm Beach, Florida 33401 Attorney for Petitioner Mr. & Mrs. Simon Naparstek 215 E. 62 St. New York, NY 10010 and 10185 Collins Avenue, Apt. 1511 Bal Harbour, Florida 33154 Leah A. Simms, Arbitrator 5