STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION BOCA CLUB ASSOCIATION, INC., Petitioner, v. Case No. 2005-04-3401 ALMIR DE LIMA and LARISA DE LIMA, Respondents. / SUMMARY FINAL ORDER This Summary Final Order is entered pursuant to Rule 61B-45.030(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 Boca Club Association, Inc., (petitioner or association) filed a petition for arbitration on August 15, 2005, naming Almir and Larisa De Lima as the respondents. 1 The petitioner alleged that the unit owners had permitted a dog weighing in excess of twenty pounds to be in their condominium unit and on the condominium property in violation of the condominium documents. The respondents filed an answer that was somewhat confusing, admitting that the dog weighed over 20 pounds, but stating that the dog traveled throughout the 1
country with Mr. De Lima, a FedEx truck driver. The answer also stated, I had to move out of my house in order to keep my dog. The answer added that someone s father was getting 75% of the residents to sign a petition so that they could keep the dog. On September 8, 2005, an order requiring supplemental information was entered. The order required the respondents to more fully explain the factual situation, i.e., who lived in the unit and their relationships, who the dog belonged to, and the dog s permanent address. After receiving supplemental information from both the respondents and petitioner, it became clear that the following relevant facts were undisputed. FACTS 1. The respondents, Almir and Larisa De Lima, are the owners of apartment 309-A, at Boca Club Condominium A (Boca Club). In the past, the respondents lived in their unit at the condominium. However, at the present time they live in Boynton Beach, Florida. Apparently, Ms. De Lima s mother and sister are currently living in the unit, perhaps with other relatives. 2. The petitioner, Boca Club Association, Inc., (association) is the condominium association responsible for the operation of the condominium, and it is authorized to bring an action to compel compliance with the condominium documents. 3. When the respondents purchased their unit, they agreed to comply with the condominium documents, which include the declaration of condominium, articles of incorporation, bylaws, and rules and regulations. 4. Article 8.15 of the Declaration of Condominium for Boca Club, as amended February 14, 2002, provides, in pertinent part, as follows: 1 The last name of the De Limas was spelled as Delima in the petition. However, the respondents have spelled their name De Lima in the documents they have filed. 2
Dogs. Owners and tenants may not have more than one (1) dog which must not weigh more than twenty (20) pounds. No dog which has pit bull lineage is permitted. Any owner or lessee who has a dog in excess of twenty (20) pounds as of the date this amendment is recorded in the Public Records must obtain from the Association a Pet Registration Form, and complete and return the form to the Association within twenty (20) days from the date this amendment is recorded. This provision will be enforced against any unit owner and lessee that does not register a dog with the association as specified herein. In addition to the above-cited provision in the declaration, Rule 12(F) of the Association s Rules and Regulations provides that there is a limit of one dog of 20 pounds or less per household. 5. The respondents own a Standard Poodle that weighs more than twenty pounds. The dog lived at the condominium, but his permanent home is now with the De Limas in Boyton Beach. The De Limas travel extensively for work. Mr. De Lima is a FedEx driver, and the dog travels with him. However, when Mr. De Lima is not on the road with the dog, the De Limas return to the condominium for regular visits with their relative(s) who live in their unit and with other friends who live at the condominium. They bring the dog when they visit. 6. In their answer and subsequent supplements to the answer, the respondents failed to allege any facts establishing a legitimate affirmative defense. CONCLUSION The undersigned arbitrator has jurisdiction over this dispute and the parties to it as provided in section 718.1255(1)(a)1., Florida Statutes, and rule 61B-45.013(2), Florida Administrative Code. Article 8.15 of the declaration of condominium, as well as the association rule, clearly provides that dogs weighing more than twenty pounds are not allowed to be on 3
the condominium property. The association advised the respondents repeatedly, beginning at least as early as March, 2004, that having a dog on the condominium property weighing over 20 pounds was a violation of the declaration of condominium. Nevertheless, the respondents continued to bring the dog onto the condominium property. Ms. De Lima states in a document filed October 14, 2005, that during the month of August she was constantly at the condominium assisting in the physical therapy of another unit owner who was very depressed due to pain. She brought the dog because the neighbor responded better to therapy when the dog was present. 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 owners have been advised on more than one occasion that the presence of the dog on the condominium property violated the declaration and the rules and regulations of the condominium. In their last communication, the respondents complain that other people at the condominium have large dogs, but also state that they have been grandfathered-in. Respondents believe that because the other large dogs are allowed to be on the property, the respondents are being harassed by the association. However, the declaration allows overweight dogs that were housed on the condominium property when the amendment passed to remain on the property as long as they were registered with the association at that time. That does not mean the respondents are being discriminated against. The respondents dog was not on the property when the 2 Section 718.303, Fla. Stat., requires tenants, unit owners, invitees, and the association to comply with the condominium documents and Chapter 718, Fla. Stat. 4
amendment passed. The respondents were on notice that dogs over 20 pounds were not allowed on the property. Ms. De Lima states that [w]e can t go to visit my loved ones because this owner ass. [sic] feel [sic] like they have a right to tell me what I can and can t do? Do they won [sic] to pay my mortgage to [sic]? I [thought] we live [sic] in a free country. What happened to that? First, the respondents are not being prohibited from visiting friends and relatives at the condominium; they just can t bring their dog with them. Second, by choosing to purchase a unit in a condominium, the respondents have chosen to submit themselves to the restrictions that accompany any purchase of property in a highly regulated residential community. The respondents have the responsibility to read and comply with the restrictions imposed by the condominium documents; the association has the right and the responsibility to enforce the restrictions imposed by the condominium documents. In this free country, people have the freedom to choose to live in a highly restricted community, like a condominium, or to live elsewhere. People who choose to buy property in a community that is highly regulated should not be surprised when they are expected to comply with the regulations. Because they have repeatedly brought their overweight dog onto the condominium property, the respondents are found to be in violation of article 8.15 of the declaration and rule 12 (F) of the condominium rules. Based on the foregoing, it is ORDERED: The respondents shall ensure that the dog is immediately and permanently removed from the condominium property. In the future, the respondents shall not bring 5
the dog onto the condominium property for any reason unless the declaration is amended to permit dogs of their dog s size to be on the condominium property. DONE AND ORDERED this 7 th day of December, 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 32399-1029 6
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 December, 2005: Laurie G. Manoff, Esquire Dicker, Krivok & Stoloff P.A. 1818 Australian Avenue South, Suite 400 West Palm Beach, Florida 33409 Attorneys for Petitioner Almir and Larisa De Lima 22615 SW 66 th Avenue Apartment 309-A Boca Raton, Florida 33428 Almir and Larisa De Lima 12395 Pleasant Green Way Boynton Beach, Florida 33437 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. 7