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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION HIGH POINT OF DELRAY WEST CONDOMINIUM ASSOCIATION SECTION 3, INC., Petitioner, v. Case No CECILY STURGE, unit owner, and EUGENE MIKE GRATHWOHL, Tenant/occupant, Respondents. / SUMMARY FINAL ORDER This Summary Final Order is entered pursuant to Rule 61B (3), Fla. Admin. Code, which provides that [a]t any time after the filing of the answer, and if no disputed issues of material fact exist, the arbitrator shall summarily enter a final order awarding relief if the arbitrator finds that no meritorious defense exists, and that the petition is otherwise appropriate for relief. BACKGROUND High Point of Delray West Condominium Association Section 3, Inc. (petitioner or association) filed a petition for arbitration on June 10, 2005, naming Cecily Sturge and Unknown Tenent as the respondents. The petition alleged that the unit owner and her friend/tenant had a dog that resided in the unit with them despite the prohibition on pets in the declaration of condominium. The petition stated that the unit owner had advised 1

2 the association that her live-in friend required the dog for medical purposes, but declined to reveal any information concerning her tenant s medical condition. The respondents filed an answer stating that the guest s dog was doctor authorized, but providing more information to the association would be personally invasive unless the association is shown to have a right to have such personal and private information. The unknown tenant was identified as Eugene Mike Grathwohl, and he was substituted as a party respondent for the unknown tenant. On July 28, 2005, petitioner replied to the answer noting that there were insufficient facts alleged in the answer to support an exemption to the condominium s requirements. A case management conference was held on August 1, 2005, after Ms. Sturge and the petitioner agreed on the time and date. Although Ms. Sturge chose not to participate in the conference, Mr. Grathwohl did participate. Mr. Grathwohl confirmed that the dog in the unit is his dog, and that he needs the dog to cope with his handicap. He admitted that he had refused to reveal the nature of his handicap to the association because he did not think it was anyone s business. Mr. Grathwohl also stated that he was planning to file a fair housing complaint with the authorized federal agency. Mr. Grathwohl was advised that if the respondents intended to pursue a fair housing defense, he would have to provide information about his disability and the necessity for the dog. As a result of the case management conference, an order was entered requiring the respondents to file an amended answer by August 31, 2005, setting forth the factual basis for the allegation that the dog is a service dog and entitled to stay in the unit 2

3 regardless of the restrictions in the governing documents. The respondents were specifically advised that facts must be alleged establishing that Mr. Grathwohl is a disabled person and that possession of the dog in the unit is a reasonable accommodation that is necessary to allow him to use and enjoy the unit as anyone else would. Respondents were also told that if they filed a fair housing complaint with an appropriate agency, they should immediately advise the undersigned of that fact. The final hearing was scheduled for September 19, On August 3, 2005, the respondents filed by facsimile copy three unrelated pages, one of which was the signature page of form HUD-903.1, which appeared to be part of a fair housing complaint. However, the rest of the form was not included and there was no cover page explaining why this page was sent. The respondents did not allege that the complaint had been filed. A Notice of Communication was issued providing the three faxed pages to the petitioner and noting that there was no cover sheet explaining the purpose of the filing. On August 17, 2005, an Order Requiring Status Report advised the respondents that the one page that looked like part of a fair housing complaint was insufficient to establish that a fair housing complaint had been filed. Respondents were directed to provide the case number or some other acknowledgement of receipt by the agency receiving the fair housing complaint, or simply provide a statement from the respondents stating that they had filed such a complaint, the date filed, and the agency where the complaint was filed. The respondents did not respond to the order requiring a status report. The respondents also failed to file an amended answer alleging the facts necessary to establish a fair housing defense. Since the purpose of the final hearing 3

4 was to hear evidence concerning the fair housing defense that the respondents were supposed to assert in their amended answer, the hearing scheduled for September 19, 2005, was cancelled. An order was entered giving the respondents a second chance to file an amended answer that would contain the appropriate allegations. The order stated, in part, as follows: The respondents have filed nothing in this case since the three pages that were not explained. They did not file any documents establishing that they had filed a fair housing complaint. They did not file a statement saying that they had filed such a complaint. They did not file an amended answer setting forth facts establishing a fair housing defense or any documentation supporting a fair housing defense. The only reason for a hearing in this case is to provide the respondents with an opportunity to establish their fair housing defense that allowing the dog to remain on the condominium property would be a reasonable accommodation under the fair housing laws. There is no dispute that the dog is on the condominium property and there is no dispute that dogs are not allowed on the property. If the respondents do not wish to pursue their fair housing defense, a final hearing would serve no purpose and would add to the attorney s fees that the respondent will have to pay if they do not prevail. Without a defense, the respondents cannot prevail. The respondents were given until September 29, 2005, in which to file something establishing that they had filed a fair housing complaint or to file an amended answer setting forth the factual basis for a fair housing defense to the violation alleged. The order stated that [i]f the respondents file nothing, a final hearing will not be held because there will be no relevant facts in dispute. The respondents have admitted the relevant facts and have not alleged any facts establishing an affirmative defense. [A] summary final order will be entered by the arbitrator. The respondents did not file an amendment to the answer or any other documents or material. The respondents have been given two opportunities to allege an appropriate fair housing defense and have failed to do so. Since the respondents 4

5 have failed to allege any facts that would support a fair housing defense, there are no factual issues to be resolved, and the entry of a summary final order is appropriate. FACTS 1. The respondent, Cecily Sturge, is the owner of the unit located at 14150B Nesting Way, at High Point of Delray West, A Condominium (High Point). Respondent Eugene Mike Grathwohl, a friend of Ms. Sturge, also resides in the unit. The respondents have a dog that is kept in the unit. The dog belongs to Mr. Grathwohl. 2. The petitioner, High Point of Delray West Condominium Association Section 3, Inc., (association) is the condominium association responsible for the operation of the condominium, and is authorized to bring an action to compel compliance with the condominium documents. 3. When the respondent purchased her unit, she agreed to comply with the condominium documents, which include the declaration of condominium, articles of incorporation, bylaws, and rules and regulations. By living in the condominium unit, Mr. Grathwohl has agreed to comply with the governing documents of the condominium. 4. Article XIII(D) of the declaration of condominium for High Point provides in pertinent part as follows: Except as provided under the Rules and Regulations, a Unit Owner shall not keep any pet in his Unit unless expressly permitted in writing by the Association, nor keep any other animals, livestock, or poultry nor may any of the same be raised, bred or kept upon any portion of the Condominium Property. Rule 16.1, entitled Pets, reads in pertinent part as follows: Pets of any nature or breed in Apartments and/or on the Common Grounds, are prohibited at all times, except only by explicit prior written consent of the Board of Directors. 5

6 5. The respondents are keeping a dog in their unit. The dog has not been approved by the association. Although the respondents advised the association that the dog was required for medical purposes, they failed to provide any further information or documentation about the medical condition or how the dog alleviates the condition In their answer, the respondents did not allege any facts to establish a defense based on the fair housing laws. Despite being given two opportunities to do so, the respondents never amended their answer. Therefore, the question of whether the dog s presence in the apartment was necessary as a reasonable accommodation for Mr. Grathwohl s alleged disability was never 1 During a conference call, Mr. Grathwohl faxed a prescription for the dog to counsel for the association. However, the prescription, was insufficient for the association to find that the dog was a reasonable accommodation for Mr. Grathwohl s undocumented disability. 6

7 presented in this arbitration proceeding. CONCLUSION The undersigned arbitrator has jurisdiction over this dispute and the parties to it as provided in section (1)(a)1., Florida Statutes, and rule 61B (2), Florida Administrative Code. Rule 61B (2), Florida Administrative Code provides, in part, as follows: The only disputes eligible for arbitration are those existing between a unit owner or owners and the association and its board of administration; however, a tenant shall be named as a party respondent where the subject matter of the dispute concerns a tenant. Because the dog at issue in this proceeding belongs to the tenant, Mr. Grathwohl, he was properly named as a party to this proceeding. The subject matter of the dispute clearly concerns him. Although a tenant or guest visiting or living in a condominium unit is required to comply with the restrictions imposed by the condominium documents, the unit owner is always responsible for ensuring that his or her unit is in compliance with the restrictions. 2 In this case, the unit owner had been advised on more than one occasion that the presence of the dog in her unit violated the declaration and the rules and regulations of the condominium. Because they are keeping a dog in the unit without the express written approval of the association, the respondents are found to be in violation of article XIII(D) of the declaration and rule 16.1 of the condominium rules. 2 Section , Fla. Stat., requires tenants, unit owners, invitees, and the association to comply with the condominium documents and Chapter 718, Fla. Stat. 7

8 Based on the foregoing, it is ORDERED: The respondents shall ensure that within fourteen (14) days the dog is permanently removed from the condominium unit located at B Nesting Way, Delray Beach, Florida. DONE AND ORDERED this 7 th day of October, 2005, at Tallahassee, Leon County, Florida. Diane A. Grubbs, Arbitrator Dep t of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida

9 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 7th day of October, 2005: Keith F. Backer, Esquire BACKER LAW FIRM, PA. The Arbor Suite South Dixie Highway Boca Raton, FL Attorneys for Petitioner Cecily Sturge B Nesting Way Delray Beach, FL Mike Grathwohl B Nesting Way Delray Beach, FL Respondents Diane A. Grubbs, Arbitrator Right to Appeal As provided by section , 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 , 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. 9