STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION LA PAZ CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2006-05-1817 RUTH BISHINS Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Land Sales, Condominiums, and Mobile Homes convened a formal hearing in this case on February 23, 2007. The parties were duly noticed of the proceeding by pre-hearing order entered on January 16, 2007. Respondent did not appear at the hearing and had previously notified the President of the Association and others that she would not appear at the hearing. During the hearing, the Petitioner presented the testimony of witnesses and tendered documents into evidence. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: J. Steven Hudson, Esq. RANDALL K. ROGER & ASSOCIATES, P.A. 621 NW 53 rd Street, Suite 300 Boca Raton, Florida 33487 1
For Respondent: For whatever reason, the Respondent chose not to appear or be represented by counsel and chose not to communicate her reasons for nonappearance to the undersigned. STATEMENT OF THE ISSUE Whether the Respondent has violated the applicable provisions of Article 18.6 of the Declaration of Condominium by creating a nuisance with the excessive noise emanating from her unit, by the volume of her television(s), between the hours of 11:00 p.m. and 8:00 a.m. PROCEDURAL HISTORY Petitioner, La Paz Condominium Association, Inc., filed petition for nonbinding arbitration on September 1, 2006. As relief, Petitioner requested an order permanently enjoining Respondent to immediately and permanently cease and desist from any and all activity resulting in the identified nuisance violation, including but not limited to, keeping the decibel levels of her television to a reasonable level for a residential community at all times, and in particular between the hours of 11:00 p.m. On September 26, 2007, an order requiring answer was entered. On November 15, 2006, a Default was entered. On November 27, 2006, Respondent filed a response to the Entry of Default. On December 7, 2006, an Order Vacating Default was entered. On December 18, 2006, Respondent filed an amended answer, at which time she denied the allegations in the petition. On January 16, 2007, a pre-hearing order was entered. On February 23, 2007, the final hearing was held. STATEMENTS OF FACT 1. The Petitioner is La Paz Condominium Association, Inc. 2
2. The Respondent is Ruth Bishins, a resident of Palm Beach County, and owner of record of Unit No. 304, 7472 La Paz Place, Boca Raton, Florida 33433. 3. The Association has received numerous complaints regarding the noise from Respondent s unit. The complaints are from owners and occupants in the adjoining units, non-adjoining units, units above both adjoining and nonadjoining, and units below both adjoining and non-adjoining, regarding the excessive noise emanating from Respondent s television(s) at all days and times, but especially between the hours of 11:00 p.m. and 8:00 a.m. 4. Petitioner s witnesses testified: the noise from Respondent s television(s) have been causing a problem since 2005. 5. The Association and fellow residents have made numerous requests of Respondent to turn the volume of her television(s) down and made numerous offers of assistance. 6. The noise from Respondent s television(s) is so loud that that it can be heard by residents as far as five apartments away on floors both above and below the Respondent. 7. The sound from the Respondent s television(s) is so loud that a resident suffering from nerve damage is still disturbed by Respondent s television(s) even when not wearing her hearing aids. 8. Various officers of the Association, employees of the property management company, and residents have made numerous attempts to assist the Respondent to resolve the issue related to the noise, including offers of 3
providing and installing portable television listening devises at no cost to Respondent. 9. Respondent has resisted all attempts to provide her assistance in resolving the issue related to the noise. 10. Article 18.6 of the Declaration of Condominium provides as follows, in pertinent part: No nuisances shall be allowed upon the CONDOMINIUM PROPERTY; and no use or practice which is an unreasonable source of annoyance to residents or which shall interfere with the peaceful possession and proper parts of the CONDOMINIUM PROPERTY by its residents shall be permitted. CONCLUSION OF LAW La Paz Condominium is a condominium within the meaning of section 718.103, Florida Statutes. The undersigned has jurisdiction over the parties and subject matter of this dispute, pursuant to section 718.1255, Florida Statutes. The respondent, by her ownership of a unit at the condominium, is required to comply with all governing condominium documents. A nuisance is that which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or occupancy physically uncomfortable. Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 130, 198 So. 819, 822 (Fla. 1940). Section 18.6 of the declaration of condominium prohibits nuisances and restricts a unit owner from engaging in a use or practice which would interfere with the peaceful possession of the condominium property by its residents, such as television(s) tuned at a 4
volume which rises to such levels as will be offensive to other occupants of the condominium. Condominium owners live in close proximity to one another and owners must understand that even when the governing documents limit the amount of noise, noises from neighbors are expected to heard to a certain degree. This, however, does not excuse behavior that rises to the level of nuisance. The law of private nuisance is a law of degree; it generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. Beckman v. Marshal, 85 So. 2d 552,555 (Fla. 1956). As Respondent chose not to appear at the final hearing, it is uncontested that the Association has demonstrated that the noise emanating from the television(s) in Respondent s unit exceeds reasonable expectations of normal use of the unit at all times, but especially between the hours of 11:00 p.m. and 8:00 a.m., and, therefore, Respondent has violated section 18.6 of the declaration of condominium at to the noise. As relief, Petitioner seeks an order immediately and permanently enjoining Respondent cease and desist form any and all activity resulting in the identified nuisance violation at all times, but especially between the hours of 11:00 p.m. and 8:00 a.m. Therefore, based on the forgoing, it is ORDERED: The Respondent shall immediately and permanently reduce the volume of her television(s) such that it will not create noise in excess of that expected on condominium property. 5
DONE AND ORDERED this 11 th day of April 2007, at Tallahassee, Leon County, Florida. Tonya S. Chavis, Arbitrator Department of Business and Professional Regulation Arbitration Section Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1029 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 Rule 61B-45.048, F.A.C. 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 to the following persons on this 11 th day of April 2007: J. Steven Hudson, Esq. RANDALL K. ROGER & ASSOCIATES, P.A. 621 N.W. 53 rd Street Suite 300 Boca Raton, Florida 33487 Ruth Bishins 7472 La Paz Place #304 Boca Raton, Florida 33433 Tonya S. Chavis, Arbitrator 6