STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BAYSHORE ON THE BOULEVARD CONDOMINIUM ASSOCIATION, INC. Petitioner, v. Case No. 2010-04-2484 RALPH SIGLER and CHERYL WHITE, Respondents. / ORDER DENYING PETITIONER S EMERGENCY MOTION AND ORDER REQUIRING SERVICE On August 23, 2010, Bayshore on the Boulevard Condominium Association, Inc. (Association), filed a petition for arbitration naming Ralph Sigler and Cheryl White, as Respondents. Petitioner alleges Respondents are in violation of Section 5A, 5B1, 5B3 and 13E of the Declaration of Condominium, and Sections 718.111(5) and 718.113(1), Florida Statutes, by denying the Association access to the unit to determine if repairs to the common element roof over the Respondents unit were effective. Additionally, Petitioner filed Petitioner s Emergency Motion for Temporary Injunction, pursuant to Rule 61B-45.011, Florida Administrative Code., which seeks a temporary injunction to bar Respondents from hiring vendors to make the repairs to the common element roof and subsequently billing the Association for such repairs, and alleges that Respondents have taken similar actions in the past. 1
Verified Petition and Verified Emergency Motion The Association seeks an Emergency Motion for a Temporary Injunction to bar Respondents from performing work or having work performed on the common element or any other portion of the condominium property for which the Association is obligated to maintain and from billing the Association for such work. Section 718.1255(4)(c), Florida Statute, provides, in pertinent part, as follows: If emergency relief is required and is not available through arbitration, a motion to stay the arbitration may be filed. The motion must be accompanied by a verified petition alleging facts that, if proven, would support entry of a temporary injunction, and if an appropriate motion and supporting papers are filed, the division may abate the arbitration pending a court hearing and disposition of a motion for temporary injunction. Rule 61B-45.011, Florida Administrative Code, provides as follows: (1) An application to the arbitrator for an order shall be made by motion which shall be made in writing, unless made during a hearing, shall state in detail the grounds for the relief requested and shall set forth the relief or order sought. The arbitrator shall conduct such proceedings and make such orders as are deemed necessary to dispose of issues raised by motion. Other parties may, within seven days of service of a written motion, file a written response in opposition to the motion. (2) A party may, either with the original petition for arbitration or any time before entry of a final order, file a motion for emergency relief or temporary injunction, which motion or accompanying argument shall demonstrate a clear legal right to the relief requested, that irreparable harm or injury exists or will result, that no adequate remedy at law exists and that the relief or injunction would not be adverse to the public interest. An evidentiary hearing on a motion for emergency relief shall be scheduled and held as soon as possible after the filing of the motion and supporting petition for arbitration. The hearing will be held upon due notice after the petition for arbitration and motion are served on the 2
opposing party and may be held prior to the filing of the answer. (3) No temporary injunction shall be entered unless a bond is given by the movant in an amount the arbitrator upon testimony taken deems sufficient, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. Petitioner s petition and emergency motion are not verified and therefore, fail to comply with the requirements of the statute and rule. Additionally, the four prerequisites for issuance of a temporary injunction are 1) irreparable harm; 2) an inadequate remedy at law; 3) a clear legal right to the relief requested; and 4) considerations of the public interest. Holiday Pines Property Owners Association, Inc. v. Wetherington, 557 So.2d 243 (Fla. 4th DCA 1990). In order to demonstrate irreparable harm for the purposes of a temporary injunction, the petition must show potential harm which cannot be redressed by a legal or equitable remedy following a hearing; a temporary injunction must be the only way of protecting the petitioner from harm. Rey v. Guy Gannett Pub. Co., 766 F. Supp. 1142 (S.D. Fla. 1991). In the Association s motion, it has alleged that the Respondents have complained of a leak in the common element roof over Respondents unit and denied the Association access to the unit to conduct an inspection to determine if the vendor hired by the Association effectuated repairs. Additionally, the Association has alleged that Respondents have informed the Association that when they (Respondents) return to the unit, they will conduct their own inspection and, if the repairs were not conducted to Respondents satisfaction, they will hire their own vendor to effectuate the repairs and bill the Association. As proof that Respondents statements are not mere threats, the 3
Association attached copies of prior lawsuits filed by Respondents in the Small Claims Court of Hillsborough County, Florida against the Association. 1 Assuming the facts of this case to be true, even upon the filing of a Verified Petition and Verified Emergency Motion for a Permanent Injunction, the harm the Association alleges is not irreparable and the Association s remedy, if the Respondents were to hire their own vendor to effectuate repairs, would be to file a lawsuit in a court of competent jurisdiction and seek an award of damages. Order Requiring Service Since jurisdiction over the respondents is obtained by service of the petition and Order Requiring Answer and since the time for an answer is dependent upon the date the Respondents received the order, this proceeding cannot move forward until the Respondents are served. Accordingly, the Association shall serve the petition, along with a copy of the Order Requiring Answer and the rules, on the Respondents in the manner provided by law for service of subpoenas issued by the circuit courts of Florida. (Rule 1.410(c), Fla. R. Civ. P.) Service over the respondents also may be obtained in accordance with Chapter 48, Florida Statutes. Proof of service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so. Regardless of the method of service, a return must be filed with the arbitrator to establish the date of service and the date the answer is due. Petitioner shall have 30 days from the date of this order in which to effectuate service on Respondents, Ralph Sigler and Cheryl White, failing which the petition shall be dismissed. Therefore, based on the foregoing, it is ORDERED: 1 Case No. 09-29546 and 10-20546. 4
1. The Association s Motion for an Emergency Temporary Injunction is DENIED. 2. No later than 5:00 p.m. on October 1, 2010, the Association shall serve a copy of the Petition, the Order Requiring Answer, and the rules on Respondents in accordance with the requirements of Rule 1.410, Fla. R. Civ. P., or Chapter 48, Florida Statutes. 2 A copy of the return shall be filed with the arbitrator and will establish the date from which the 20-day time period for filing an answer will commence. DONE AND ENTERED this 31 st day of August, 2010, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Division of Land Sales, Condominiums, and Mobile Homes Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 (850) 488-0973 Copy: Shawn G. Brown, Esquire FAX: 727-528-2900 Land & Brown, P.A. 5001 Fourth Street North, Suite A St. Petersburg, Florida 33703 2 The rules and answer to arbitration petition form may be printed from the division s website at www.state.fl.us/dbpr/lsc/arbitration/index.shtml. The petitioner may also contact the division for assistance in obtaining these forms. 5