FINAL ORDER. Pursuant to notice, the undersigned arbitrator of the Division of Florida Land

STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR...
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STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION

Terranova Condominium Association, Inc., Petitioner,

Case Nos. 2003-06-5651,200306-5661,2003-06-5664,2003-065655

Rosa E. Sanchez, Natalia and Maritza Darvania, Jose Subervi and Maria Rosario, Marta and Roberto Ruark, Respondents. /

FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Land Sales, Condominiums, and Mobile Homes convened a formal hearing in this case on November 17, 2003. The parties presented the testimony of witnesses and tendered several documents and photographs into evidence. The parties were given an opportunity to cross-examine the other party’s witnesses at the final hearing. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner:

Sam Persaud, Esquire Stuart Nunez, Esquire Persaud & Decker 1320 S. Dixie Highway Suite 715 Coral Gables, Florida 33146

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For Respondents: Javier Guadayol, Esquire Javier Guadayol, P.A. 13550 SW 88TH Street Suite 290 Miami, Florida 33186 PROCEDURAL HISTORY On

June

2,

2003,

Terranova

Condominium

Association,

Inc.

(the

association) filed a petition for arbitration against the named respondents seeking an order enjoining the respondents from permitting their children to play in the parking areas of the condominium property and requiring the respondents to stop gathering on the common elements outside their units. On July 17, 2003, the respondents submitted an answer to the petition for arbitration, denying that any actions taken by themselves or their children violated the association’s governing documents and asserting that the association’s governing documents do not prohibit their gathering in the common areas nor do the documents prohibit their children from playing in the parking areas. The respondents asserted the defenses of selective enforcement and laches, and lack of pre-arbitration notice. On August 12, 2003, an order dismissing the petition for arbitration for failure to allege specific facts that would establish the respondents’ and their children’s activities violated the association’s governing documents was issued. The association moved for reconsideration of the final order of dismissal and on September 11, 2003, the arbitrator vacated the final order of dismissal and permitted the association to file an amended petition for arbitration. The association filed its amended petition on September 22, 2003 and alleged that the respondents improperly gathered in the

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parking areas in violation of the association’s governing documents and that the children’s playing in the parking lot unattended constituted a nuisance in violation of the association’s governing documents. The respondents answered the amended petition for arbitration on October 6, 2003, and an evidentiary hearing was held on November 17, 2003. FINDINGS OF FACT 1.

The Division of Florida Land Sales, Condominiums, and Mobile Homes

of the Department of Business and Professional Regulation has jurisdiction over the parties and the subject matter of this dispute, pursuant to Section 718.1255, Florida Statutes. 2.

Rosa E. Sanchez, Natalia and Maritza Darvania, Jose Subervi and

Maria Rosario, and Martha and Roberto Ruark reside at Terranova condominium and are unit owners. The respondents’ children were identified by the association as the children frequently seen playing in the parking lot area near the respondents’ homes and the driveways of the condominium property. 3.

Terranova Condominium Association, Inc. is responsible for the

operation of the Terranova Condominium property. Terranova condominium consists of 320 residential units which are peripherally located on a main circular driveway. The common areas include a pool and club-house, a tennis court, walkways and various green spaces, including a green space which was recently constructed by the association to provide additional recreational space for the condominium’s residents.

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4.

The association presented the testimony of Joaquin Alvarez, the

property manager and Terranova residents Marianela Sirias, Carlos Saborio, Ana Falber, Isabel Toribio, Giselle Nodarse and security guard Maria Sanchez. 5.

The association’s witnesses presented testimony which established

the following: a)

The testifying witnesses know the respondents and their children well.

b)

The respondents frequently gather in the parking lot area near their

units, at least 2-3 times/week, and bring lawn chairs into the parking area to sit and socialize, eat and/or drink and listen to music. This has occurred during the late afternoon and evening hours, and at times has continued until 12:00 midnight. The respondents have engaged in this activity for at least a year. c)

The noise resulting from these gatherings can be heard by other

residents of the property, including those living approximately a block away. The noise has also been the source of numerous complaints by other residents. d)

In addition to the association receiving numerous complaints from the

residents who are disturbed by the respondents’ activities in the parking lot area, the police have been summoned to the property to respond to noise complaints on a few occasions. Verbal fights and altercations have also occurred when security guards responding to unit owner complaints have approached the respondents. e)

The association has also received many complaints regarding the

respondents’ children playing in the parking area near the respondents’ homes. The complaints are from residents who are disturbed by the noise the children

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make while playing in the parking areas and who are concerned about the children playing around cars being driven in and out of the parking areas and on the main drive circling the condominium property. f.

The respondents’ children have been seen playing in the parking lot

area. Typically they play games such as baseball or football and hide-and-seek, and ride their bicycles and run and scream. The children are not always supervised and have frequently been seen playing in the parking areas after 10:00 p.m. and sometimes as late as 12:00 at night. The children’s ages range from 5-10 years old. g.

In addition to complaints regarding the children playing in the parking

area and driveway, the association has received complaints about damage to cars in the parking areas. Two specific incidents of damage to cars which include scratched paint and a broken window have occurred. There was no competent evidence linking the damage to the respondents’ children. h.

The association property manager, members of the association’s

board and other residents have asked the respondents to have their children play in areas other than the parking lot area. i.

Residents living in the units near the respondents have frequently been

disturbed by the noise the children make while they are playing in the parking lot during the late evening hours. j.

There was testimony regarding two incidents that have caused the

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residents involved to be very concerned about the children playing in the parking area and driveway areas. One incident involved a child riding a bicycle in front of a resident’s car who was driving on the main driveway. The resident was driving slowly and the child was not harmed. Another incident involved a resident who saw one of the respondents’ children hiding beneath a car in the parking area near the respondents’ homes. The respondents’ social gatherings and the children’s playing in the parking lot and driveway areas is a source of contention in the community. 6.

The respondents presented the testimony of Jorge Zareta, another

community property manager who has managed various condominium properties in Florida, and residents Marta Carrera, Diogenes Muriel, Luis Fernandez, Gaspar Aguilera, Rosa Zeladon, Flor Ventura, Rosa Gonzalez, Nelsor Ravi, as well as the respondents Rosa Sanchez, Jose Subervi and Maria Rosario, Maritza Daravania, and Marta Ruark. a. The testimony from the non-party witnesses reflects that these witnesses are not concerned about the children playing in the parking lot and driveway areas, nor do they consider the children to be a problem. The testimony also reflected that some, but not all, of the witnesses have heard the respondents playing loud music, and that the respondents have gathered in or near the parking lot area, but the testimony reflected that the witnesses did not consider these activities to be a problem. Additionally, there was some testimony that the children have been observed playing in the parking lot area as late as 11:00 p.m.

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b. The testimony also established that the main driveway has many speed bumps to control the traffic on the property. 7.

The testimony of the respondents demonstrated that they have gathered

in the parking areas to socialize and listen to music. The testimony also established that the respondents are not aware of all of their children’s activities when they are playing in the parking area. The respondents testified that they are concerned about their children playing in the other common areas because of illegal activity (drug use) that is alleged to have occurred there and that their children have not used

the

recreational

green

space

the

association

recently

constructed.

Additionally, there was some testimony that when the children were playing at or near the tennis court area, they were asked to leave. The testimony also reflects that the respondents believe their children are sufficiently supervised while they are playing in the parking lot and that the children are not at risk because the speed of traffic on the property is controlled. CONCLUSIONS OF LAW There are two disputed issues which require resolution by the arbitrator, both of which concern the conduct of the respondents and their children. The association alleges that the actions of the respondents and their children violate the association’s governing documents. Specifically, it must be determined whether the respondents’ action(s) of gathering in the parking areas and whether the respondents’ children playing unattended in the parking areas violate the association’s declaration of condominium.

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Article XV, section (B) of the declaration of condominium provides that “[t]he common elements and limited common elements shall be used only for the purposes for which they were intended in furnishing services and facilities for the use and enjoyment of units.” Article XV, section (C) of the declaration of condominium provides, that: No nuisance shall be allowed upon the condominium property, nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful possession and proper use of the condominium property by residents. All parts of the Condominium property shall be kept in clean and sanitary condition and no rubbish, refuse or garbage shall be allowed to accumulate nor shall any fire hazard be allowed to exist. No use shall be had by any unit or of the common elements or limited common elements which would increase the rate of insurance upon the condominium property. After consideration of the evidence presented at the final hearing, the arbitrator finds that the association has carried its burden of establishing that the conduct of both the respondents and their children is a violation of section C, article XV of the declaration of condominium. Florida courts have long recognized the principle that property owners may be limited in the manner in which they use their property, and prohibitions against uses that are a nuisance to other owners have been historically upheld. See Mercer v. Keynton, 163 So. 411(Fla. 1935); Mayflower Holding Co. v Warrick, 196 So. 428 (Fla. 1940); Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819, 822 (Fla. 1940); Palm Corporation v. Walters, 148 So. 527, 4 So. 696 (Fla. 1941); and Jones v. Trawick, 75 So.2d 785 (Fla. 1954). Nuisance has been defined as “[a]nything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or

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occupation physically uncomfortable… “ See Knowles v. Central Allapattah Properties, Inc., 198 So. 819 (Fla. 1940). The association has established that the respondents’ conduct has interfered with the neighboring residents’ peaceful possession of their property by playing loud music, talking in the parking area just outside other residents’ units and by engaging in verbal altercations on the condominium property. The testimony presented by the association reflects that it has received many complaints about the noise caused by the respondents during their social gatherings, with one witness verifying that on at least one occasion the respondents played music so loudly that it was heard a block away. The association also presented testimony that the police have been summoned to the property on at least two or three occasions to respond to resident complaints about the respondents gathering in the parking areas. The association presented evidence that that the respondents gathered in or near the parking lot area two to three times per week and this has been a consistent practice for at least a year. The testimony also established that the respondents have been seen socializing during the evening hours around 8:00 or 9:00 p.m., and there was testimony that established that the respondents continued socializing in the parking area as late as 12:00 at night. Conduct which is disturbing, annoying and which interferes with other unit owners or occupants is subject to being enjoined.

See

Santa Monica v. O’Connor, Arb. Case No. 02-

4691, Final Order (July 31, 2002)(unit owner enjoined from disruptive behavior,

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such as whistling at others residents and banging on floors and walls, that disturbed other residents). The association also presented evidence that the respondents’ children were permitted to play unattended in the parking areas of the condominium property. The children’s play consisted of activities such as bike-riding, playing ball, running, yelling or screaming and hiding around the cars parked in the parking lot area. The association also presented testimony that the children have been frequently seen playing in the parking areas after 10:00 p.m., with one witness testifying that the children were seen playing in the parking lot areas as late as 12:00 a.m. on several occasions. The association also established that it received numerous complaints from residents who were disturbed by the children while the children were playing in the parking lot. Although there was testimony of cars being damaged, there was no evidence that tended to show any of the respondents’ children were responsible for the damage. Moreover, the association did not present any evidence that any recent increase in insurance rates for the association was linked to the activities of the children. However, the evidence did establish that the noise caused by the children frequently disturbed neighboring residents. Additionally, the testimony reflects that the children’s activities of hiding around the cars parked in the areas immediately adjacent to their homes created considerable concern for some of the neighboring residents. While it is well recognized that children need to play and, in doing so, may

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cause noise, children should not be permitted to engage in disruptive activity late at night. See Cypress Chase North Condominium Ass’n v. Huc, Arb. Case No. 970093, Final Order (March 25, 1998).

Although the respondents presented

testimony of residents who stated they had not had problems with their children playing in the parking areas, these witnesses did not live in the same area of the condominium property as the respondents; therefore, these witnesses were not likely to use the same parking facilities as the neighboring residents who testified during the final hearing. The arbitrator gives greater weight to the testimony presented by the neighboring residents as to the frequency and level of noise created by the respondents and their children in the parking lot area during the later evening hours of 10:00 p.m. to 12:00 a.m. In doing so, the arbitrator finds that the noise created by the respondents and their children at these times interferes with the rights of the neighboring residents to peaceful possession of their property. The respondents asserted the affirmative defenses of selective enforcement, laches and lack of pre-arbitration notice. However, the respondents failed to present sufficient evidence that would support any of these defenses. Selective enforcement is established if the facts show that the association is enforcing a restriction against one unit owner while allowing other unit owners to violate the same restriction. The association may not enforce restrictions in a selective or arbitrary manner. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979). There was no competent evidence to support a finding

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that the association has failed to enforce its restrictions against any other unit owners, therefore this defense fails. To establish the defense of laches, it must be shown that the association, after having knowledge or notice of the respondent's conduct, unreasonably delayed in asserting its rights to enforce its restrictions, and gives the respondent reason to believe that that it will not do so in the future. See Quatraine Condominium Association, Inc. v. Getz, Case No. 99-0335, Final Order (December 29, 1999). Although several witnesses testified that the complained-of activities of the respondents’ and their children had been going on for at least a year, the respondents failed to demonstrate that the association delayed in taking action to enforce the restrictions contained in its governing documents. The correspondence introduced into evidence demonstrated that the association made several attempts to obtain the respondents’ cooperation in complying with its governing documents over a two-year period, with a final pre-arbitration letter being sent in August of 2003. Therefore, this defense fails. The arbitrator also finds that the correspondence provided to the respondents by the association prior to the initiation of this arbitration proceeding establishes that the respondents were provided with sufficient pre-arbitration notice. Therefore, the respondents’ defense that the association did not provide sufficient pre-arbitration notice also fails. RELIEF AND REMEDY

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The arbitrator finds that the noise resulting from the respondents while socializing in the parking areas and noise made by the children while playing in the parking lot areas in the late evening violates section C of article XV of the declaration of condominium. The respondents shall immediately cease from playing loud music at anytime during the day or evening hours in such a manner as to annoy or disturb other condominium residents. The respondents shall also immediately cease gathering and socializing and/or talking in the parking areas outside other residents’ units in such a manner that the level of noise created by the talking or socializing disturbs other residents of the condominium property. The respondents shall also refrain from engaging in verbal altercations or fights while on the condominium property. Additionally, the respondents shall ensure that their children are supervised by an adult guardian so that the children do not make noise which disturbs other residents whenever the children are playing outside their units in the parking areas, and the respondents shall not permit their children to play in the parking lot areas after 10:00 in the evening. Further, the respondents shall, at all times in the future, comply with the section C of article XV of the declaration of condominium. DONE AND ORDERED this 18th day of March, 2004 at Tallahassee, Leon County, Florida. _________________________________ Catherine Bembry, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street

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Tallahassee, Florida 32399-1029 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing final order has been sent by facsimile and U.S. Mail to the following persons on this 18th day of March, 2004: Stuart J. Nunez, Esquire Persaud & Decker 1320 South Dixie Highway, Ste. 715 Coral Gables, Florida 33146 Facsimile: (305) 661-8305 Javier Guadayol, Esquire Javier Guadayol, P.A. 13550 SW 88th Street, Ste. 290 Miami, Florida 33186 Facsimile: (305) 386-8096 _________________________________ Catherine Bembry, Arbitrator Right to Appeal As provided by s. 718.1255, F.S., this final order may be appealed by filing a complaint for trial de novo with a court of competent jurisdiction in the circuit in which the condominium is located, within 30 days of the entry and mailing of this final order. 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. 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 61B45.048, 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. The filing of an appeal of this

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order does not toll the time for the filing of a motion seeking prevailing party costs and attorney’s fees.

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