STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES
IN RE: PETITION FOR ARBITRATION
WIMBLEDON AT JACARANDA
CONDOMINIUM NO.1, INC.,
Petitioner,
v.
Case No. 98-3427
JOANMARIE GORMLEY,
Respondent.
_________________________________/
SUMMARY FINAL ORDER
Comes now, the undersigned arbitrator, and enters the following order:
Procedural History
Petitioner alleges that respondent’s dog exceeds twenty (20) pounds, in
contravention of the declaration of condominium and the rules and regulations. On May
18, 1998, respondent filed her answer and affirmative defenses, including a selective
enforcement defense. On June 9, 1998, petitioner responded to respondent’s selective
enforcement defense, arguing, among other things, that petitioner had sent violation
letters to other unit owners with overweight dogs. Respondent was allowed to reply to
petitioner’s response and did so on July 23, 1998. She did not dispute the facts set
forth in petitioner’s response to her selective enforcement defense, except to allege that
petitioner controls Phase VI of Wimbledon at Jacaranda Condominium Association No.
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11 and has not taken enforcement actions against owners of overweight dogs who live
there.
Findings of Fact
Petitioner alleges that respondent’s dog weighs in excess of twenty (20) pounds,
in contravention of Article VIII.D, paragraph 4 of the declaration of condominium, and
Rule 16 of the rules and regulations. Article VIII.D, paragraph 4, reads:
A unit owner may keep any domestic pet or animal on the
condominium property so long as such domestic pet or
animal does not constitute a nuisance and unreasonably
interfere with the quiet enjoyment of the premises by the
other condominium owners and provided further that such
pet weighs less than 20 pounds.
Rule 16 of the rules and regulations provides:
No unit owner may keep any pet or animal on the
condominium property except for household pets under 20
pounds in weight and so long as such pet or animal does not
constitute a nuisance and interfere with the quiet enjoyment
of the premises by the other condominium owners. The pets
will be kept subject to the following regulations:
(e) The owner will be permitted to keep such pet on the
condominium property so long as such pet does not
constitute a nuisance and interfere with the quiet enjoyment
of the premises by the other condominium unit owners.
1
This argument is discussed in the Conclusions of Law section, p. 5.
2
In her answer, respondent admits that her dog weighs in excess of twenty (20)
pounds and raises a selective enforcement defense, listing two dozen examples of dogs
which exceed the twenty (20) pound weight limit,2 including dogs residing in Phase VI of
Wimbledon at Jacaranda Condominium No. 1. Petitioner rebuts respondent’s selective
enforcement defense, stating:
The eight units contained in Phase VI are not within
the control of the Petitioner and, therefore, the Petitioner
cannot control those units. Petitioner responds to the
remaining 13 units as follows:
a. At the Annual Membership meeting held on March
21, 1995, the membership voted to re-adopt Article [Rule] 16
concerning the weight limit of a pet. 89 of the 172 units
voted in favor of the weight restriction, re-adopting the rule.
A true copy of the minutes of the March 21, 1995 annual
membership meeting are attached hereto as Exhibit “A.”
b. Because the rules were re-adopted on March 21,
1995, two Units, units 231 and 76 already had dogs
exceeding the weight limit and, therefore, were
grandfathered in.
c. With respect to Unit 200, the dog at issue weighs
less than 20 lbs.
d. With respect to the remaining 10 units, Petitioner is
actively pursuing these violations. Attached as Composite
Exhibit “B” are true copies of the violation letters sent to each
of these unit owners. It is the Petitioner’s intent to pursue
these violations. As with the Respondent, Petitioner is
allowing these unit owners a small leeway in time to have
the dogs removed, given the sensitivity and nature of
eviction of a pet from a household. Nevertheless, if the pets
are not removed in a timely fashion, Petitioner will turn the
2
Including dogs in units 231, 76, 200, 261, 253, 251, 242, 228, 190, 181, 175,
173, and 74.
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matter over to its attorneys for further action.
e. In addition to the units cited by the Respondent,
there are several other units in violation of the pet restriction.
To show the Petitioner’s intent and actions to enforce the
pet rule against all unit owners, Petitioner has attached as
Composite Exhibit “C” additional pet restriction violation
letters sent to individual unit owners.
Petitioner’s attached composite exhibit B consists of violation letters sent to the
owners of each unit claimed to harbor an overweight dog, with the exception of units
200, 231, and 76. Most of these letters are dated March and April, 1998; three are
dated May 26, 1998. In the instant case, respondent filed her answer and affirmative
defense of selective enforcement on May 18, 1998. In her reply to petitioner’s response
to her selective enforcement defense, respondent argues that the three letters dated
May 26, 1998 were written after respondent raised her selective enforcement defense
and after the undersigned arbitrator ordered petitioner to respond to respondent’s
selective enforcement defense. Although this may be true, the bulk of the violation
letters were sent out within two months of the filing of the instant petition on March 3,
1998. It is clear that petitioner is making a concerted, conscientious effort to achieve
compliance with the twenty pound weight limit and has not singled out respondent.
Conclusions of Law
The fact that respondent is the only unit owner who, so far, has been served with
a petition for arbitration does not constitute selective enforcement. The case law is wellsettled that an association may sue one owner to enforce a restrictive covenant and not
sue another owner who has the same violation. See, Killearn Acres Homeowners
Association, Inc. v. Keever, 595 So. 2d 1019 (Fla. 1st DCA 1992). In Killearn, nine
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homeowners other than Keever erected satellite dishes without association approval.
Eight were in the owners’ backyards, and the association decided not to take any action
against these owners. The ninth owner’s satellite dish was located in the side yard
similar to Keever’s, and the association decided to “...seek enforcement of the covenant
depending upon the outcome of the instant case.” Id. at 1021.
The court held that
evidence of such inaction against the ninth owner, whose violation was similar to
Keever’s, was “...subject to challenge pending the outcome herein...” Id. at 1022.
Petitioner’s initiation of efforts to achieve widespread compliance with the twenty pound
weight limit clearly demonstrates that there is no intention to selectively enforce the
restriction against respondent. Therefore, respondent’s selective enforcement defense
is stricken.
In her answer and in her reply, respondent also argues that dogs in excess of
twenty pounds reside in Phase VI of Wimbledon at Jacaranda, but no enforcement is
being taken against these dogs’ owners. Documentation submitted by respondent,
including copies of the rules and regulations of Phase VI, support petitioner’s contention
that it has no control over the eight units in Phase VI which may harbor overweight
dogs. The condominium association established for Wimbledon at Jacaranda
Condominium No. 1 - Phase VI is specifically described as being “independent of, but
affiliated or associated with, Wimbledon at Jacaranda Condominium No. 1, Inc.”
(Emphasis added). Moreover, in a resolution passed at a meeting of the board of
directors of Wimbledon at Jacaranda Condominium No. 1, Inc., held on December 5,
1979, it was resolved that the 4.7 acres which comprise Phase VI “shall be allowed to
form a separate condominium association to be known as Wimbledon at Jacaranda
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Condominium No. 1 - Phase VI.” Therefore, since petitioner is not the association
which governs Phase VI, respondent’s selective enforcement defense vis a vis the
overweight dogs residing in Phase VI is stricken.
As a final matter, in the undersigned arbitrator’s order dated July 10, 1998, the
erroneous conclusion was reached that striking of respondent’s selective enforcement
defense would result in this case proceeding to final hearing on the issue of whether
respondent’s dog constitutes a nuisance. In fact, no final hearing is necessary in the
instant case, as respondent admits that her dog exceeds the twenty pound weight limit,
in contravention of the declaration and rules and regulations, and her only defense has
been stricken. Thus, removal of the dog is warranted under these facts alone, and a
determination of whether the dog also constitutes a nuisance is not necessary.
WHEREFORE, respondent shall remove the subject
dog from the condominium property with forty-five (45) days of the date of this order.
Respondent shall in the future comply with Article VIII.D, paragraph 4 of the declaration
of condominium, and Rule 16 of the rules and regulations.
DONE AND ORDERED this 28th day of July, 1998, at Tallahassee, Leon
County, Florida.
________________________
Donna La Plante, Arbitrator
Department of Business and
Professional Regulation
Northwood Centre
1940 North Monroe Street
Tallahassee, Florida 32399-1030
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RIGHT TO TRIAL DE NOVO
PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION
SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE
NOVO IS FILED BY A PARTY WHO IS ADVERSELY AFFECTED IN A COURT OF
COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS
LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS
FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT
APPEALABLE TO THE DISTRICT COURTS OF APPEAL.
CERTIFICATE OF MAILING
I hereby certify that a true and correct copy of the foregoing was mailed by U.S.
mail, postage prepaid, to: Marvin P. Pastell II, Esq., Becker & Poliakoff, P.A.,
3111 Stirling Road, P.O. Box 9057, Fort Lauderdale, FL, 33310-9057, and Joanmarie
Gormley, 222 Wimbledon Lake Drive, Plantation, FL, 33324 on this 28th day of July,
1998.
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__________________________
Donna La Plante, Arbitrator
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