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

Transcription

1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION THE TOWERS OF QUAYSIDE NO. 4 CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No GEORGE GARAMI, ANNE GARAMI, and MARK MUTCHNIK, Respondents. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator and enters the following order pursuant to Rule 61B , Florida Administrative Code, requiring summary disposition where no disputed issues of material fact exist. The original petition for arbitration in this case, filed on June 16, 2000, requested as relief an order requiring removal of a dog being kept in the condominium unit. The association cited a provision of the declaration providing that pets cannot weigh more than 20 pounds and that tenants are not permitted to keep pets. The petition also asserted that large pets were grandfathered in upon application by notice to all unit owners on October 14, 1999, but that the large dog in respondents unit was not registered as grandfathered prior to the expiration of the grandfathering period on November 15, The respondent/tenant Mark Mutchnik filed an answer admitting that the dog is over the weight limit; however, he asserted that neither he nor the owners of the unit, respondents George 1

2 and Anne Garami, received any communication from the association regarding grandfathering the pet and, had they received same, they would have registered the pet. Mark Mutchnik also asserted that, since the owners of the unit, the Garamis, formed a partnership with Mark Mutchnik s father, Ralph Mutchnik, Ralph Mutchnik is an owner of the unit. Thus, he argues, as an owner s son, Mark Mutchnik is a family member and not a tenant; therefore, he is not governed by the portion of the condominium documents pertaining to tenants. The association filed a motion for summary disposition, in essence arguing that the partnership agreement had expired, it was never recorded, and it did not convey title to the property. Therefore, the association argued, Mark Mutchnik is legally a tenant and is not entitled to keep a pet in the unit. The petitioner then filed a motion to amend its petition, asserting that an additional cause of action had arisen. The amended petition alleges, in part, that the dog has become a nuisance, in that it allegedly frightened a unit owner and lunged to attack unit owners in two separate incidents arising after the filing of the original petition. In response to the amended petition, all the respondents filed an answer which is ambiguous as to the size of the dog, since respondents deny the paragraph regarding the dog being oversized in violation of the condominium documents; however, they assert as a defense once again that they were not given the opportunity to register the pet, and if such had been provided they would have registered the pet. Since only large pets or multiple pets were being grandfathered, or needed to be since a single dog or cat under 20 pounds is permitted to be kept in the unit by a unit owner, it is apparent that the respondents do not now deny that the dog is over the weight limit. In any event, its weight is immaterial for 2

3 reasons which will become clear below. The respondents further deny that the dog has become a nuisance. Respondents again assert in response to the amended petition that the resident of the unit and owner of the dog, Mark Mutchnik, is the son of Ralph Mutchnik, who is an owner along with the Garamis pursuant to a partnership agreement. As the son of an owner, they argue, he is not a tenant but a family member living in the unit and is not governed by the portion of the documents dealing with tenants. The undersigned acknowledges that there is some dispute as to the nature and validity of the partnership agreement and whether it makes Ralph Mutchnik an ow ner of the unit. However, accepting for the moment that Ralph Mutchnik is an owner of the unit, the status of Mark Mutchnik as his son does not remove the son from the category of tenant. This is because Mark Mutchnik is occupying the unit on his own, i.e., the pleadings do not reflect that any of the owners, including Ralph Mutchnik, also live in the unit. Since Mark Mutchnik is not a household member of an owner, he is a tenant, regardless of a blood relationship he may have with an owner. In Thompson v. Quail Hollow Condo., Inc., Arb. Case No , Arbitration Final Order (Oct. 30, 1992), the association rejected a prospective tenant because she had two dogs and the condominium rules did not allow tenants to have pets. The owner of the unit had been attempting to sell the unit to the prospective tenant s father. The owner argued that since the prospective tenant of the unit was the daughter of the prospective buyer, she would be a family member of the prospective owner and not a tenant. The arbitrator held, however, that the daughter was correctly treated as a prospective tenant since she would have been occupying a unit she did not own. She would not be a member of the new unit 3

4 owner/father s family since she would not be a member of the father s household where the father had no intention of living in the unit, but was purchasing it for his 33-year-old daughter to occupy. Quoting Black s Law Dictionary, Fifth Edition, in part defining tenant as one who holds lands of another, the arbitrator reasoned that the daughter fell within the definition of tenant since she would have been occupying her father s property with his assent. The arbitrator further found that Section 83.43, Florida Statutes, defining tenant as any person entitled to occupy a dwelling unit under a rental agreement, did not conflict with this interpretation, where Section 83.43(7), Florida Statutes, defines rental agreement as a written or oral agreement providing for the use and occupancy of premises. On the other hand, if the daughter were to live with the father in the unit, then she would be considered a household member and the dogs would be allowed since family members who live with unit owners are allowed to have pets. By way of further explanation of this distinction, the arbitrator in Thompson stated: Indeed, the word "family" has historically been defined as including only those persons who reside together as a household unit. The primary meaning of the word "family", as used in our language to specify a definite group of persons, is defined as "the collective body of persons who form one household under one head and one domestic government, including parents, children, and servants. In construing a writing in which the word "family" is used, the primary meaning should be assumed in determining the expressed intention of the writer unless there is something in the context to show that it is used in some other meaning. Dalton v. Knights of Columbus, 67 A. 510, 511 (Conn. 1907). In Wood v. Wood, 28 A. 520, 521 (Conn. 1893), the court stated that the term family "does not include adult children living separate and not forming a part of the same household." In Goss v. Harris, 43 S.E. 734 (Ga. 1903), the court, quoting Lord 4

5 Kenyon in Rex v. Inhabitants of Darligton, 4 Term Rep. 800, stated: In common parlance... the family consists of those who live under the same roof with a pater familias - those who form his fireside. But, when they branch out and become the heads of new establishments, they cease to be part of the father's family. Indeed, the term "family", when using the context of real property regulations and restrictions, primarily refers to people who live together as a domestic unit... On the basis of the foregoing, it is held, therefore, that Mark Mutchnik, who is living in the unit without an owner present, is deemed a tenant. Subparagraph 18.3 of the declaration asserted by the petitioner provides: Pets: A unit Owner may keep one (1) cat or one (1) dog, provided the pet does not weigh more than 20 pounds, and further provided that the pet is kept, transported and walked in accordance with the Rules and Regulations of the Association, and does not, at any time, create or constitute a nuisance. No other pets are permitted (except fish and small birds). Pets may not be raised for commercial purposes. Lessees or tenants of Units shall not be permitted to keep pets. As applied to Mark Mutchnik, the prohibition on tenant pets applies. The relief requested is therefore granted. The prohibition on tenant pets is absolute and does not depend upon the weight of the pets; therefore, the pet could not have been grandfathered as an oversized pet exception to the 20-pound weight limit in paragraph 18 of the declaration. Thus, whether the association erred in failing to give an opportunity to allow the pet to be registered is immaterial. As resolution of these issues is dispositive, the undersigned does not reach the disputed issue of whether the pet is a nuisance. Wherefore, it is ORDERED: 1. The relief requested by petitioner is GRANTED. 5

6 2. Mark Mutchnik shall remove the dog within 30 days of the mailing of this final order. 3. The respondents shall in the future comply with paragraph 18 of the declaration of condominium. 6

7 Florida. DONE AND ORDERED this 9th day of March, 2001, Tallahassee, Leon County, RIGHT TO TRIAL DE NOVO Tyler Powell, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida As provided by Section , Florida Statutes, a party adversely affected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency action and is not appealable to the district courts of appeal. If this final order is not timely appealed, it will become binding on the parties and may be enforced in the courts. ATTORNEY S FEES As provided by s , 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 , 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 , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. 7

8 CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, to the following persons this 9th day of March, 2001: HELIO DE LA TORRE ESQ LAURA MANNING ESQ SIEGFRIED RIVERA ET AL 201 ALHAMBRA CIR STE 1102 CORAL GABLES FL Petitioner s attorneys LEWIS S KIMLER ESQ 600 N E THIRD AVE FORT LAUDERDALE FL Attorney for respondents Tyler Powell, Arbitrator 8