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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SUNRISE LAKES CONDOMINIUM ASSOCIATION, INC. #5, Petitioner, v. Case No LAWRENCE BRIAN LEVY, Respondent. / FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in this case on July 19, During the hearing, the parties presented the testimony of witnesses, entered documents into evidence and cross-examined witnesses. The Association has filed a post-hearing memorandum. As the date of this Final Order, Respondent has not filed a post-hearing memorandum or a request for extension. This order is entered after consideration of the complete record. Appearances For Petitioner: For Respondent: JoAnn Nesta Burnett, Esq. Becker & Poliakoff, P.A. P.O. Box 9057 Fort Lauderdale, FL Lawrence Brian Levy, pro se 8280 Sunrise Lakes Blvd. Building 56, Apartment 308 Sunrise, FL

2 Relevant Procedural History On April 4, 2013, Sunrise Lakes Condominium Association, Inc., #5. (the Association) filed a petition naming Lawrence Brian Levy as Respondent. The petition alleged that Respondent was creating a nuisance by the condition of unit and his behavior. On June 14, 2013, Respondent filed an answer. At a case management conference held on June 28, 2013, Respondent admitted that he is a hoarder and his unit is not in compliance with the governing documents. The remaining issues are whether Respondent is sleeping in the common areas, storing items on the common elements, storing items in storage lockers assigned for use to other unit owners, and whether he takes items from the condominium s dumpsters. Findings of Fact 1. Petitioner, Sunrise Lakes Condominium Association, Inc., #5. (the Association) is the corporate entity responsible for the operation of Sunrise Lakes Condominium #5. 2. Respondent is the owner of a condominium unit located at 8280 Sunrise Lakes Blvd., Building 56, Apartment 308, Sunrise, Florida and is a member of the Association. 3. At the final hearing, the following individuals gave testimony: Pamela Sinzenich, from Nationwide Management, Angela Concannon, President of the Association, Linda Brando, Director of the Association, Mikel Batista, the Association s maintenance supervisor, Jose Seisdedos, Nationwide Management, Geoffrey Deneen, resident/owner in building 56 and Respondent Lawrence Brian Levy. 2

3 4. Respondent admitted his unit is filled with items to the point that Respondent is unable to occupy the unit any longer. When the front door of the unit is opened, there is a wall of items and debris from the ceiling to the floor preventing ingress. Pictures of the unit taken on July 17, 2013, reflect minimal clearing of the items allowing a person to enter the foyer approximately two feet and turn into the kitchen approximately two feet. Respondent has no access to the living room, bathroom or bedroom. 5. The unit is a fire and safety hazard and is creating an insect and rodent problem in Respondent s unit and the surrounding units. Geoffrey Deneen, a unit owner in building 56, testified that there have been more reports of bugs and rodents in building 56 within the last few months than ever before. Mikel Batista, the maintenance supervisor for the Association who examined Respondent s unit, testified that some of the items in the unit are chemicals and cleaning supplies which pose a serious safety and fire hazard based upon the manner and locations in which they are improperly stored. Mikel Batista testified that there is a possibility of mold in the unit, as well, based upon what appears to be mold on some of the items in the unit. 6. The condition of Respondent s unit has prevented and continues to prevent Respondent from sleeping in the unit and otherwise occupying it. Angela Concannon, Geoffrey Deneen and Mikel Batista each testified that they have seen Respondent sleeping, and cooking in the common elements, such as the laundry room, satellite offices, A/C and meter rooms, which conduct is also strictly prohibited. Angela Concannon, Geoffrey Deneen and Mikel Batista testified that Respondent has been seen in the laundry rooms on various floors in various buildings, using the laundry room 3

4 to eat and sleep without actually washing clothing, linens and/or towels. At times, Respondent filled the dryers with paper, not laundry. This activity prevents residents from using the laundry facilities in their building and on their floor and forces them to use a laundry facility on another floor. 7. Respondent occupies the satellite offices to the exclusion of other unit owners. Respondent cooks all his meals in the satellites and essentially lives in the common elements despite the prohibitions against this conduct. Angela Concannon and Linda Brando testified that, on more than one occasion, after the satellite office was checked and locked for the evening, Respondent was found inside the locked satellite office. 8. Angela Concannon testified that Respondent has been seen occupying the sauna, the mens and womens restrooms, along with shopping carts filled with Respondent s possessions, to the exclusion of others. 9. Linda Brando testified that recently, Respondent was witnessed trimming his toe nails in the main clubhouse. 10. Respondent places garbage, shopping carts filled with garbage and other bottles and/or articles in the storage area in his and other buildings, on the catwalks, under the stairs and in various other places around the community as attested to by Mikel Batista who is intimately familiar with the style of packing and packaging of Respondent s belongings. Respondent carefully stores his items in such a tight compact manner that it creates a signature. 11. Angela Concannon, Geoffrey Deneen, Mikel Batista, Linda Brando and Pam Sinzenich testified that Respondent uses storage bins belonging to other residents 4

5 to store his belongings. It is obvious that certain items belong to Respondent because of the manner in which he packs and saves the items as stated by Mikel Batista. 12. Geoffrey Deneen testified that over the fourteen years he has lived in this community, he has seen Respondent inside virtually every dumpster within the community and he has witnessed Respondent take items from the dumpster and place them in shopping carts that are improperly stored throughout the community. 13. The Association s Exhibits A K were admitted without objection. Additionally, a Petition signed by several residents of Building 56 complaining about the unsanitary condition of Respondent s unit and his storing of items that come from the dumpsters throughout the community, and storing items on the catwalks, was entered as evidence without objection. 14. The Association, through its Board of Directors, has received numerous complaints about Respondent s conduct and activities throughout the community, including, but not limited to, the condition of Respondent s unit; Respondent s storing items in assigned storage bins not belonging to Respondent; Respondent s improper storing of items under the stairs, on the catwalks, in satellite offices, A/C Rooms, meter rooms, restrooms, the sauna and storage rooms; Respondent sleeping and virtually living in the common elements; and Respondent digging through the dumpsters throughout the community. Angela Concanon and Mikel Batista testified that the Association had to implement a monthly sweep or canvass of the community to clean out all of the items improperly stored in various areas of the community in Respondent s signature manner of storing. This monthly cleaning requires maintenance to put off other duties and responsibilities to the detriment of the residents. 5

6 15. At the Case Management Conference held on June 28, 2013, Respondent admitted he is a hoarder and admitted that his unit is not in compliance with the Association s governing documents. Respondent denied all of the other accusations. 16. At the final hearing, Respondent stated he would completely clean his unit by September 3, Article XIII subsections (c) through (f), of the Association s Declaration, provides, in relevant part: part: Upon acquisition of title to a unit, the acquirer agrees that he will not, nor will he permit those in his care, custody or control, to: (c) Use his unit or terrace for any purpose or in any manner contrary to or not in accordance with the appropriate provisions therefore as set forth in this Declaration, in any of the other Condominium Documents, and in the Association s Rules and regulations. (d) Do or keep anything in his unit which would or could impair or threaten the health, welfare or safety of any person in this adult residential community, or which would or could obstruct or interfere with the rights of other unit owners or their lessees, or annoy them by unreasonable noises or otherwise. (e) Do or keep anything in his unit which would or could increase the rate of insurance on the Building or increase the possibility of loss or damage theretofore which the association may be responsible to repair or replace. (f) Do or keep anything in his unit in this adult residential community, which the statutes, decree, or the Condominium Documents declare or imply, or the Association s Rules and Regulations rule, or prudence dictates, to be unlawful, immoral, improper, hostile, or offensive. 18. Article VIII, Section 4 of the Association s Declaration provides, in relevant (4) Any violations which are deemed by the Board of Directors to be a hazard to public health, may be corrected immediately as an emergency matter by the Association, and the cost thereof shall be charged to the unit owner as a specific item, which shall be a lien against his unit, with the same force and effect as if the charge were a part of the common expenses. 19. Article XIV(c)(4), of the Declaration, provides, 6

7 (c)(4) Each unit owner agrees as follows -- to allow the Management Firm, the Board of Directors, or the agents or employees of the management Firm or the Association to enter into any unit for the purpose of maintenance, inspection, repair, replacement of the improvements within the units, or to determine in case of emergency, circumstances threatening units, limited common elements or the common elements, or to determine compliance with the provisions of this Declaration and the By-laws of this Association. 20. Rules 1, 2, 4 and 10 of the Association s Rules and regulations, state: 1. Common elements, including entrances, passageways, catwalks, stairways, and elevators, must not be obstructed in any way nor used for any purpose other than ingress or egress. 2. No garbage cans, supplies, bottles or other articles shall be placed on the catwalks or on the staircase landings. 4. Personal property of all unit owners shall be stored in their condominium units or in the assigned storage space in the storage room. 10. Additionally, the hours of operation for the pool, laundry facilities, Clubhouse and satellite offices are as follows: The main pool area 8 a.m. to 8 p.m. Main Clubhouse 8 a.m. to 10 p.m. Satellite I 8 a.m. to 9:30 p.m. Satellite II 8 a.m. to 8 p.m. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to Section , Florida Statutes. The Association has claimed Respondent has created a nuisance in both his unit and the common areas of the condominium. 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). The Association s governing documents prohibit nuisances and restrict a unit owner from engaging in a use or practice which would interfere with 7

8 the peaceful enjoyment possession of the condominium property by its residents, such as hoarding items in a unit that cause a safety and health violation for the surrounding unit owners, storing items in the common elements and in others storage bins, sleeping, cooking and otherwise living in the common elements, and digging through dumpsters to remove and hoard the contents. Condominium owners live in close proximity to one another and a certain amount of disruptive conduct is expected. However, that does not excuse behavior that rises to the level of a 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 tenancy to injure. Beckman v. Marshal, 85 So. 2d 552, 555 (Fla. 1956). The test to be applied is the effect of the condition complained of on an ordinary person with a reasonable disposition in ordinary health and possessing the average and normal sensibilities. Id. The testimony established that Respondent is unable to occupy his unit and is sleeping and cooking in the satellite offices, the main club house, the A/C Room, Meter rooms, closets, storage rooms and laundry rooms and is otherwise occupying these common elements to the exclusion of others in violation of the governing documents. Respondent is impermissibly storing his belongings in the common elements, including under the stairs, in the storage rooms, in the meter rooms, in the restrooms in the sauna, and in other peoples storage bins, in violation of the governing documents. Respondent enters the dumpsters in the community and removes garbage and trash 8

9 which he then stores in his unit, in shopping carts throughout the community and in the common elements. Respondent s conduct has created an immeasurable negative effect on the residents in the community. Respondent s conduct prevents other residents from using and enjoying the common elements for their intended purposes. Based upon the evidence presented at the final hearing, including the testimony of several witnesses and the introduction of exhibits, Respondent s conduct is deemed a nuisance and a violation of the governing documents, as well as a safety and heath hazard to other residents. Based upon the foregoing, it is ORDERED: 1. The relief request by Petitioners is GRANTED. 2. Respondent is ordered to clean his unit by removing all clutter, debris, trash and garbage from his unit no later than September 3, Should Respondent fail to clean out the unit in accordance with this Order by September 3, 2013, the Association is hereby permitted to enter the unit and remove all of the clutter, trash, debris and garbage from the unit at a reasonable cost to be born by Respondent. The items removed from the unit shall be placed in a portable storage container and stored at the portable storage container facility at Respondent s sole cost and expense. 3. After the removal of the clutter, garbage, trash and debris from Respondent s unit, the Association is permitted to have a mold study performed on the unit. If a hazardous level of mold is present, Respondent must hire a licensed, mold remediation company to perform the mold remediation work within five (5) business days of notification of mold and provide the Association with proof of the mold 9

10 clearance. If Respondent fails to obtain the necessary mold remediation work within five (5) business days, the Association is permitted to hire a licensed mold remediation specialist to perform the work with Respondent being liable for the costs of same, including a clearance test. Should the mold remediation specialist determine that rugs, carpets, furniture, or any other item, require cleaning or removal, the items shall be cleaned or will be removed and placed in a portable storage container at Respondent s sole expense and cost. 4. After the removal of the clutter, garbage, trash and debris from Respondent s unit, the Association is permitted to fumigate the unit and check for insect and rodent infestations. The costs associated with these services shall be borne by Respondent. 5. Respondent is ordered to maintain the unit in a clean, sanitary and habitable state, free of insects, rodents and hazardous levels of mold from the date of this Order forward. 6. The Association shall be entitled to inspect Respondent s unit quarterly for two (2) years to determine compliance with this Order. Should the Association determine the unit to be in violation of this Order, then upon five (5) days of posted and mailed notice to Respondent, the Association shall be entitled to enter the unit for the purpose of bringing the unit in compliance with this Order. The two (2) year quarterly inspections of Respondent s unit shall be extended from the date of the last violation until the unit remains clean and habitable for a consecutive two (2) year period. 7. Respondent shall immediately and permanently refrain from using storage bins other than the storage bin assigned to his unit. 10

11 8. Respondent shall immediately and permanently refrain from storing items on the common elements, including under stairways, on the catwalks, in the sauna, restrooms, A/C room, meter room, satellite offices, main club house, laundry rooms and all other Association property. 9. After September 3, 2013, any items stored by Respondent on the common elements, including storage lockers assigned to other unit owners, may be disposed of, without notice to Respondent, by the Association in the manner deemed most appropriate by the Association. 10. Respondent shall immediately and permanently refrain from sleeping in the A/C room, meter room, satellite offices, main club house, laundry rooms and all other Association property and use these rooms for their intended limited purpose only. 11. Respondent shall immediately and permanently refrain from cooking and eating in the A/C room, meter room, satellite offices, main club house, laundry rooms and all other Association property and use these rooms for their intended limited purposes only. DONE AND ORDERED this 23rd day of August, 2013, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850)

12 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 , Florida Statutes. As provided by section , 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 , F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and facsimile (if provided) to the following persons on this 23rd day of August, 2013: JoAnn Nesta Burnett Becker & Poliakoff, P.A. P.O. Box 9057 Fort Lauderdale, FL Fax: Attorney for Petitioner Lawrence Brian Levy 8280 Sunrise Lakes Blvd. Building 56, Apartment 308 Sunrise, FL Respondent Terri Leigh Jones, Arbitrator 12