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

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION PALM COLONY CLUB CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No WILLIAM I. FISHER, JR. Respondent. / FINAL ORDER AFTER HEARING Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares and Mobile Homes conducted a telephonic final hearing in this case on June 10, 2015, at 10:00 a.m. Respondent failed to appear. The Association appeared and presented the testimony of witnesses and entered documents into evidence. The Association filed a post-hearing memorandum. This order is entered after consideration of the complete record. Appearances For Petitioner: Nicholas A. Vidoni, Esquire Watson, Soilean, Deleo, Burgett & Pickles, P.A North U.S. Highway 1 Cocoa Beach, Florida For Respondent: Failed to Appear

2 Relevant Procedural History Petitioner, Palm Colony Club Condominium Association, Inc. (the Association), filed a Petition for Arbitration on March 31, 2015, alleging that Respondent, William I. Fisher, Jr., an owner of a unit in the condominium, was a nuisance in the condominium and requested as relief an order to Respondent to cease and desist his abusive and disruptive behavior in and around the pool and other property areas of the Association in violation of the Association s governing documents. An Order Requiring Answer was issued on April 6, 2015, and on April 29, 2015, Respondent filed his answer. A case management conference was held on May 12, 2015, and both parties appeared. A final hearing was scheduled for June 10, 2015, at 10:00 a.m. and Respondent did not appear. However, when Respondent received the Association s final memorandum of law in support of the petition on July 13, 2015, he made handwritten comments on a copy of the memorandum, attached a letter directed to the undersigned and filed both with the Division on July 28, Findings of Facts 1. Petitioner, Palm Colony Club Condominium Association, Inc. (the Association), is the governing body for the Palm Colony Condominium with the responsibility to manage the condominium and to maintain its property. 2. Respondent, William F. Fisher, Jr., owns unit # in the condominium and is thereby a member of the Association. 3. Article XVI of the Declaration of Condominium (declaration) states in pertinent 1 This filing will be stricken from the record and given no consideration by the arbitrator. 2

3 part under the paragraph entitled Use Restrictions: No immoral, improper, offensive or unlawful use shall be made of the condominium property, nor any part thereof, and all laws, zoning ordinances and Governmental regulations of all kinds shall be observed. No condominium unit owner shall use his property in any manner which shall be a nuisance or a source of annoyance to other residents or which interferes with the peaceful possession and proper use of the property by the other condominium unit owners. 4. The General Rules and Regulations contain the identical language outline above which is found in the declaration. 5. According to the Community Association Manager (CAM), Mr. Curtis Easey, Respondent moved into the community in early 2013, and according to Carol Carberry another unit owner, Respondent began immediately to terrorize the residents and guests of the community. 6. At the final hearing, a number of people testified on behalf of the Association. 7. Ms. Irene Ackley, a unit owner, recalled how in the summer of 2013, her daughter-in-law and two grandchildren were visiting and playing in the community s pool. While sitting with her relatives, Respondent came to the pool, sat down and just stared at her. After leaving the pool to check on dinner, Ms. Ackely returned and found Respondent by the pool, taking pictures of her grandson and granddaughter who were cowered against the pool maintenance shed, frightened and crying. 8. After Ms. Ackely confronted Respondent, he claimed he was taking pictures of the scenery. 3

4 9. After Ms. Ackely confronted Respondent he followed closely behind her as she walked to her unit and brushed his leg up against hers. 10. While walking to Ms. Ackley s unit behind her, Respondent managed to whisper in her ear, you tell me your name and I ll tell you mine. Ms. Ackley finally called the police to the condominium to stop Respondent s odd, aggressive behavior. 11. Ms. Carberry a unit owner, recounted that Respondent had frightened adults and children out of the pool in the summer of 2014 and on May 12, 2015, wrote the following letter: I had a very crude encounter with one of my neighbors, Bill Fisher. I casually told him he was walking [the] wrong way because he was headed towards my car. That set him off screaming that he will go wherever he wants and say what he wants. He got in my face and told me that $200, is being spent on 4 men here and they don t do anything except go up to these ladies houses and lay around al[sic] day and he was pointing to my house. He watches me all day and in the evening he roams around too. I have seen him sitting under trees watching my condo to see who comes and goes. He was screaming at us going on about calling the state and he was going to have a conference call and things were going to change around here. I had the police here last summer because he was being terrible to this young couple he was just glaring at me until the police told him to sit down and be quiet. The most difficult thing is, he is always watching us, me and many others here. 12. Ms. Carberry testified that Respondent comes to the pool area and stares at people and he performed a cannonball dive into the pool nearly on top of an 80 year old woman, Frances Burke. Respondent damaged Ms. Burke s hearing aid. 4

5 13. Ms. Carberry witnessed Respondent scaring a guest of another unit owner, Joyce Panicola. He asked her if she was a unit owner and told her she could not use the pool if she was not an owner. When she did not move, Respondent just stared at Ms. Panicola. 14. Ms. Marilyn Patwell testified that on the evening of February 11, 2015 at approximately 7:00 p.m., Respondent allowed his dog to relieve himself in front of her and she asked Respondent to pick it up. Respondent refused, told her to mind her own business, became very aggressive, wanted her name and said he was going to get her. Then he spit in her face. Ms. Patwell described Respondent as having gone berserk and described him as a ticking time bomb. 15. Mr. Domingo Torres, one of the maintenance men, testified how Respondent intentionally nicked his golf cart while he was working even though Respondent had enough room to go around Torres golf cart. 16. On another occasion, Respondent darted at the golf cart when Torres was driving it apparently trying to startled Torres to wreck the golf cart. 17. In November 2014, Respondent approached Mr. Torres and asked if he was the supervisor and told him that he should not be a supervisor and began verbally harassing him. Torres finally had to call the sheriff s office. 18. Also, Respondent had a habit of following Torres around the condominium grounds and just staring at him in a threatening manner while he was working. 19. Mr. Torres also recounted that during the summer of 2014, he and Nate Sanders, another maintenance man, were working on the roof of the pool heater shed. 5

6 Respondent walked through the cordoned-off section of the work area twice and brushed up against Mr. Torres while looking irate. 20. On another occasion while Torres was working to fix the sprinklers, Respondent stood in the area so that Mr. Torres could not test the sprinklers by turning them on. 21. Mr. Torres spoke about how he had to change the way he works because of Respondent s conduct and how he was frequently delayed in completing his work projects by Respondent s antics. 22. Unit owner, Deborah Tweedie, discussed how Respondent interfered with a baby shower being held at the clubhouse. Respondent came to the clubhouse and asked what she was doing. Then he returned three times during the shower attempting to get the guests to move their cars and trucks from the parking lot. Finally, Ms. Tweedie locked the door so Respondent could not enter. Respondent called the police complaining loudly that he could not use the clubhouse when he wanted. Apparently there was a hockey game on television that he wanted to see using the television in the clubhouse. 23. The Association president, Ms. Gloria Cohen, said Respondent was standing outside of the baby shower ranting and raving. 24. The CAM, Mr. Easey, testified that the Association has called the police on account of Respondent s behavior 24 times since early 2013, when Respondent purchased his unit. 25. Easey also said he had received over 40 complaints about Respondent s behavior from the community s unit owners, visitors and guests. 6

7 26. Easey testified further that Respondent constantly stands behind palm trees which line the driveway out of the condominium and watches when Easey leaves the property. He said when it first started Respondent only hid and watched him leave 2 or 3 times a week. However, it has now escalated to Respondent hiding behind the trees almost every afternoon. Easey thinks Respondent is checking to make sure he has left the premises then continues in earnest with his annoying behavior. 27. The Association introduced numerous police reports related to incidents generated by Respondent s annoying conduct. Conclusions of Law The undersigned has jurisdiction of the parties and this dispute pursuant to Section , Florida Statutes. A nuisance is that which annoys or disturbs one in the free use, possession or enjoyment of his property or which renders its ordinary use or occupancy physically uncomfortable. Isle of Sandalfoot Condominium, Inc., 5 d/b/a/ Boca Dunes 5 v. Freitas, Arb. Case No , Order Requiring Amended Petition (October 9, 2014). The existence of a single incident of playing music or a television too loud does not make the person a nuisance and unfit to live in the community. Whether the activities of the tenants constitute a private nuisance is a question be decided based on the facts presented and a court looks to whether there is an appreciable, substantial, tangible injury to the property rights of others, and not merely trifling annoyance, inconvenience, or discomfort. Id. citing, Horizons West condo. No. 1 Ass n, Inc. v. Stone, Arb. Case No , Final Order (March 26, 1996). Whether certain conduct constitutes a nuisance is determined by the effect of the condition complained of on ordinary persons with a 7

8 reasonable disposition in ordinary health and possessing average and normal sensibilities. Kappelman v. Pier 43 Condominium Association, Inc., Arb. Case No , Order Striking Claims (June 21, 2001). The testimony of the unit owners at the final hearing, the maintenance man, the CAM and guests who observed Respondent s behavior over the past two years, convinced the undersigned that Respondent is a nuisance to other unit owners and their guests and to employees of the Association. Respondent s behavior has frightened children, interfered with day-to-day maintenance of the grounds and facilities by employees of the Association, resulted in uninvited physical contact with others who have every right to be on the grounds, and included committing the heinous act of spitting in someone s face. It has also wasted the resources of the municipality due to law enforcement s frequent presence on the property to answer nuisance calls from either the Respondent or a unit owner. Moreover, Respondent failed to mount a defense to the allegations in the petition failing to appear at the final hearing. Indeed, during the case management conference held on May 12, 2015, Respondent opined it would do him no good to attend the final hearing because his neighbors and the Association were against him. He lamented in addition, that he had no evidence to refute the allegations and he did not want to confront his neighbors at a hearing. Having essentially admitted his inability to refute the Association s allegations Respondent has acquiesced to the accusations and to the entry of this final order in the Association s favor. It is therefore; 8

9 ORDERED and ADJUGDED that Respondent has created a nuisance and willfully violated Article XVI of the Declaration of Condominium which are the nuisance provisions governing the conduct of unit owners and their guests and the identical provisions of the Association s rules and regulations. Therefore, Respondent shall immediately cease and desist harassing, interfering with, confronting, offending, touching and verbally assaulting the residents of the condominium, their guests/tenants/workers and Association employees and any other actions which are intended to annoy, irritate or harass others in the condominium. Respondent shall in the future, comply with the cited provisions of governing documents Florida. DONE AND ORDERED this 1 st day of September, 2015, at Tallahassee, Leon County, Leah A. Simms, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: (850) Facsimile: (850) Trial de novo This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Rule 61B , F.A.C. Certificate of Service I hereby certify that a true and correct copy of the foregoing Summary Final Order has been sent by U.S. Mail to the following persons on this 1 st day of September, 2015: 9

10 Nicholas A. Vidoni, Esq. Watson, Soilean, Deleo, Burgett & Pickles, P.A N. U.S. Highway 1 Cocoa Beach, FL Attorney for Petitioner William I. Fisher, Jr N. Hwy. A1A, # Indialantic, FL Respondent Leah A. Simms, Arbitrator 10