STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

IN RE: PETITION FOR ARBITRATION

OCEAN TRACE CONDOMINIUM ASSOCIATION, INC.,

Petitioner, v. Case No. 2005-05-4736

JOHN L. RUSSO, KATHY SIMMONS, and SANDRA SWEENEY,

Respondents. ______/

FINAL ORDER ON DEFAULT

BACKGROUND

On October 17, 2005, a petition for arbitration was filed by Ocean Trace

Condominium Association, Inc., (the association) against John L. Russo, Kathy Simmons,

and Sandra Sweeney (the respondents). The petition and an order requiring an answer were served on each of the respondents by certified mail on November 2 and 7, 2005.1

The order required the answer to be filed within 20 days. The respondents failed to file an answer, and a default was entered on December 2, 2005.

In both the Entry of Default and the Order Requiring Answer, the respondents were advised that if they did not file an answer to the petition all facts alleged in the petition would be deemed admitted by the respondents and a final order would be entered granting the relief requested by the petitioner. The respondents failed to file an answer or

1 John Russo was served on November 2, 2005, and the other two respondents were served on November 7, 2005.

1 any other communication. Therefore, all facts alleged in the petition are deemed admitted

by the respondents. This final order is entered based on the information set forth in the petition for arbitration and the exhibits thereto.

FACTS

1. The respondent John Russo is the owner of unit 404 located within Ocean

Trace Condominium (the condominium or Ocean Trace). The respondents Kathy

Simmons and Sandra Sweeney are the tenants who occupy the unit. Petitioner, the

association, is the not-for-profit corporation responsible for the operation of the

condominium and is authorized to enforce the restrictions, requirements, and rules set

forth in the condominium documents, which consist of the declaration of condominium,

the articles of incorporation, the bylaws, and the rules and regulations.

2. Section 17.3 of the declaration of condominium for Ocean Trace (declaration)

provides, in pertinent part, as follows:

Pets. Except for small domestic birds or fish, each Unit Owner…may maintain two household pets in his Unit to be limited to dogs and cats, provided they do not have a combined weight of more than 120 pounds and that the household pets are not kept, bred or maintained for any commercial purpose. Dogs may not be kept in a Limited Common Element area when the Owner is not present in the Unit. No animals of any kind shall be kept under any circumstances in a Unit, or allowed upon the Condominium Property, except by prior written consent of the Board of Directors of the Association. Such pets shall nevertheless be subject to the reasonable rules and regulations promulgated by the Association. … No guest, lessee or invitee shall bring any animal whatsoever upon the Condominium Property. No one other than an (sic) Unit Owner is permitted to keep any pets. (e.s.)

Rule (13) of the Ocean Trace rules and regulations also requires all pets to be approved by the Board and states that no tenant shall be permitted to have a dog or cat.

2 3. When the respondent Russo purchased his unit, he agreed to be bound by

the restrictions set forth in the condominium documents. Nevertheless, he has allowed

his tenants to keep two dogs in the unit. The tenants are also bound by the restrictions,

rules and regulations. By choosing to live in the condominium, they have agreed to

abide by the restrictions set forth in the condominium documents.

4. The tenants are keeping two dogs in the condominium unit in violation of the

declaration of condominium and the rules and regulations of the condominium.

5. Respondent Russo, the unit owner, has been advised of this violation on

more than one occasion. In response to one of the letters from the association, he

claimed that the dogs were his, even though he lives in Connecticut. However, none of

the respondents disputed the allegations set forth in the petition for arbitration, which

stated that the tenants were maintaining the dogs in the condominium unit in violation of

section 17.3 of the declaration. The letter sent to Mr. Russo on September 29, 2005,

advised him of the violation, gave him ten (10) days in which to have the dogs removed,

and notified him that appropriate legal action to enforce compliance, including the filing

of a petition for arbitration in accordance with section 718.1255, Florida Statutes, would

be taken if the dogs were not removed from the unit. The dogs were not removed from

the unit.

10. The petition for arbitration was filed on October 17, 2005. In its petition, the association requests that an order be entered finding the respondents to be in violation of the condominium documents and ordering them to remove the dogs from the condominium.

3 CONCLUSIONS

The undersigned arbitrator has jurisdiction over the parties to and the subject matter of this proceeding pursuant to section 718.1255(1)(a)1., Florida Statutes.

Both the declaration and the rules and regulations of the condominium clearly state that tenants cannot have dogs in their unit or on the condominium property.

Despite that prohibition, the tenants are maintaining two dogs in the condominium unit and the unit owner has not required the dogs’ removal.

In this arbitration proceeding, the respondents have not challenged the allegations in the complaint. The respondents have not challenged the provisions in the condominium documents that allow unit owners, but not tenants, to have pets.2

The respondents have remained silent in the face of the association’s demand for removal of the dogs. The respondents have violated the declaration of condominium by allowing the two dogs to live in the unit with the tenants in violation of the condominium

documents and without permission of the association. The respondents will remain in

violation for as long as the tenants keep the dogs in the unit without the permission of

the association.

From respondents’ failure to comply with the requirements of the condominium

documents after requests from the association to do so and from their refusal to

participate in this arbitration proceeding, it is apparent that the respondents will continue

2 It might be argued that §718.106(4), Fla. Stat., prohibits disparate treatment of unit owners and tenants, at least when it comes to the common elements. But see, Grove Isle Condo. Ass’n, Inc., v. Levy, Arb. Case No. 96-0172, Summary Final Order (November 19, 1996)(different treatment of unit owners and tenants, by not permitting tenants to have pets when unit owners can have them, is acceptable because it is not wholly arbitrary and does not violate public policy or abrogate fundamental constitutional rights.)

4 to ignore the restrictions imposed on them by the declaration and the rules and regulations of the condominium in the absence of an order compelling their compliance.

Therefore, based on the foregoing, it is

ORDERED:

Within thirty (30) days, the respondents shall remove the tenants’ two dogs from the condominium unit. The respondent Russo, as the unit owner, shall ensure that the dogs are removed within thirty (30) days. The respondents shall allow the association to inspect the unit at any reasonable time after the thirty (30) day time period to ascertain compliance with this order.

DONE AND ORDERED this 4th day of January, 2006, at Tallahassee, Leon

County, Florida.

______Diane A. Grubbs, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 (850) 414-6867

5 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 4th day of January, 2006:

Michael E. Chapnick, Esquire Chapnick Community Association law, P.A. 100 East Linton Boulevard Suite 102-B Delray Beach, Florida 33483 Attorney for Petitioner

John L. Russo 139 Moritz Place Fairfield, CT 06824

Kathy Simmons 400 Uno Lago Drive Unit 404 Juno Beach, FL 33408

Sandra Sweeney 400 Uno Lago Drive Unit 404 Juno Beach, FL 33408 Respondents ______Diane A. Grubbs, Arbitrator

Right to Appeal

As provided by section 718.1255, F.S., a party who is adversely affected by this final order may, within 30 days of the entry and mailing of this final order, file a complaint for a trial de novo in a court of competent jurisdiction in the circuit in which the condominium is located. This order does not constitute final agency action and cannot be appealed to a district court of appeal. Attorney’s Fees and Costs

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.

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