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 SARASOTA VILLAGE GARDENS CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No ANTHONY GUASTAVINO, CONNIE GUASTAVINO, JOSEPH GUASTAVINO, and SCOTT FELLOWS, Respondents. / FINAL ORDER Pursuant to notice, a formal hearing in this case was held before the arbitrator on January 16, 1998, by telephone conference with the parties participating from Sarasota and the arbitrator participating from Tallahassee, Florida. Petitioner was represented by Christine E. Lamia, Esq., and the respondents represented themselves. The association and the Gustavinos presented the testimony of witnesses and tendered documents into evidence; respondent Scott Fellows did not participate. The parties were given the opportunity to file post-hearing memoranda and the petitioner filed its memorandum on January 30, This order is entered after consideration of the complete record in this matter. ISSUE PRESENTED Whether the respondents are maintaining a nuisance in their unit. FINDINGS OF FACT Respondent Anthony Guastavino, along wit h his parents Joseph and Connie Guastavino, who are also named as respondents, own a unit in the Sarasota Village Gardens Condominium which is operated by the Sarasota Village Gardens Condominium Association, Inc. (petitioner). Anthony

2 Guastavino has lived in the unit since Respondent Scott Fellows has lived in the unit almost continuously since The pet ition alleges that Anthony Guastavino and Scott Fellows have been involved in numerous physical and verbal confrontations, between themselves and/or other unit owners residing at the condominium, and that these incidents have been a constant disturbance to the other residents of the condominium. Joseph and Connie Guastavino filed an answer stating that when they became aware of the problem they had Scott Fellows evicted in February They thought the problem was solved only to find on March 26, 1997, that Fellows had moved back into the unit with their son. They wrote a letter to Fellows requesting him to vacate the unit as soon as possible. At the hearing Mrs. Guastavino testified that she later changed her mind about evicting Fellows when she decided that the condominium association was not treating her son fairly. Her son, Anthony Guastavino, is HIVpositive, which means he has human immunodeficiency virus, the cause of HIV Disease and Acquired Immune Deficiency Syndrome (AIDS). See According to Anthony Guastavino, residents of the condominium have called him names and shunned him because of his illness. Diane Roseneck, chair of the association s compliance committee, has received several complaints from unit owners about the behavior and actions of Scott Fellows and Anthony Guastavino. According to the association s records, four of the incidents giving rise to the complaints occurred at the pool during the months of August and September, The first incident was a confrontation between unit owner Sam Adlin and Scott Fellows, in which Adlin claimed that Fellows had taken Adlin s shirt the year before. Fellows became verbally abusive to Adlin and spit at him. The second incident occurred when Fellows and Anthony Guastavino were cooking at the pool veranda. Fellows made suggestive remarks to another male unit owner who was using the pool. The third incident occurred at the pool area when Fellows, who appeared to be 2

3 drunk, made suggestive and lewd comments to another male unit owner and followed him by car after the other unit owner walked away. The unit owner had to step off the road for fear of being hit. The fourth incident occurred at the Labor Day picnic when Scott Fellows appeared at the picnic in what appeared to be an inebriated state. He became angry when quest ioned about the disappearance of a large bottle of vodka. He started to throw garbage and dishes over the fence at the pool and bang the gate door. Roseneck yelled at him to stop, and he did. She told him to pick up the garbage, and he did. Then he left. Roseneck received another report about an incident which occurred on January 4, According to the report, Gordon and Tina Collett heard loud noises and screams from Anthony Guastavino s unit. Anthony Guastavino ran out and backed Fellows car out of its parking space and left it in the road. He then pulled Fellows from the house, all the while hitting him. Mr. Collett called the police. On January 9, 1997, resident Carlton Wells attempted to stop Anthony Guastavino from choking Fellows. Anthony and Scott were in a car in the condominium parking lot and the horn was blaring. Anthony resisted Wells attempts to interfere and Wells glasses were knocked off. On March 31, 1997, the police responded to a call regarding a disturbance in Gustavino s unit. When the police arrived, Guastavino was standing by his front door yelling at Scott Fellows. Inside, the police found signs of a fight. In addition, Guastavino had a bite mark on his arm and Fellows had a cut on his right ankle, an abrasion on his knee and stated that he had been choked. Anthony Guastavino told the police that he was cooking dinner and he and Fellows got into an argument. He asked Fellows to leave, but Fellows refused to leave. The argument turned into a physical fight. The police report indicates that both Guastavino and Fellows were arrested for domestic battery. On July 7, 1997, owner Chris Sadler heard loud noises from Guastavino s unit. Her note to 3

4 association president Vincent Brady said that Guastavino was after Scott again and Scott was yelling for someone to call the police. The association asserts that the nuisance behavior continues, with the latest incident occurring on December 20, Unit owners Jack and Jan Baker were celebrating their 50th wedding anniversary at a party in the condominium clubhouse. About 50 friends and family members had dined at a local restaurant and met afterward at the clubhouse for champagne toasts. The Bakers had reserved the clubhouse for the occasion. Fellows and Anthony Guastavino, along with a woman friend and her child, entered the clubhouse and began playing the piano despite the presence of the party-goers and the competing music. The Bakers informed them that the clubhouse was being used for a private party. Nevertheless, Guastavino and Fellows refused to l eave. Anthony Guastavino called the Bakers daughter a b---- and ripped a tablecloth off one of the tables. The daughter s husband pushed Anthony over a couch. Angry words were exchanged by Mr. Baker, Fellows and Anthony Guastavino. Mr. Baker grabbed Fellows by the belt to remove him from the room. In the process of being thrown out of the room, Fellows fell against the glass door. Mrs. Baker called the police while all this was going on. The police report indicates that it appeared that Guastavino and Fellows were very intoxicated during the incident. Guastavino testified that Jack Baker instigated the incident by trying to bar Guastavino and Fellows and their guests from what Guastavino thought was the association Christmas party. Guastavino s testimony is rejected. The Bakers both testified convincingly that Mr. Baker told Guastavino when he entered the party area that it was a private party. Furthermore, considering Guastavino s own testimony that he was harassed and shunned by other owners, it is not believable that he would choose to party with them. Unit owner Dennis Duggan lost a seasonal tenant due to the conduct of Anthony Guastavino and Fellows. The tenants have rented Duggan s unit for several years for three months at a time for 4

5 $1, per month. Duggan recently received a letter from the tenants informing him that they would not be renting the unit again and that the disturbances caused by Anthony and Scott next door are responsible for our decision. Not only were we witness to violent behavior and police intervention, but personally drawn into this situation with frightening knocks on the door after we had retired for the night. According to President Brady, when Scott Fellows is not present at the condominium unit, Anthony Guastavino s conduct is acceptable to the association. Anthony Guastavino was notified by letter dated September 19, 1996, that his conduct and the conduct of a permanent guest who apparent ly resides with you was inappropriate. Specifically, the letter indicated that Guastavino and Fellows insulted other residents of the condominium, and engaged in loud, abusive and obnoxious behavior. On March 26, 1997, respondents Joseph and Connie Guastavino were also notified that they were violating the use restrictions by allowing drunken, abusive and annoying behavior to occur in their unit and on the property. Roseneck personally observed Anthony Guastavino in an extremely intoxicated state at the pool. Guastavino would fall down and Scott would stand him up again. On another occasion, Anthony was drunk at the pool when it started to rain. All pool users, including a family with four children, took shelter under a nearby roof. Roseneck said she was embarrassed for the kids sake on account of Anthony s behavior. She testified that this sort of thing has happened on several occasions. The answer filed by Anthony Guastavino on October 24, 1997, admits that there have been confrontations between him and Scott Fellows. However, he claims that they were caused by his being over-medicated for his illness. He claims that with Scott Fellows insistence and encouragement, in April, 1997, he retained a new physician, altered his medication, and sought 5

6 counseling; as a result, he says that there have been no incidents for some time. He claims that Fellows is his primary care-giver, home health aide and has been a stabilizing factor in his acceptance of a terminal illness. Anthony Guastavino test ified that other residents have harassed him on account of his illness. The harassment was so intense at the pool (swimmers left the pool when Anthony got in it) that he has not used the facilities since March, He admits that prior to his medication change in April, 1997, much of the trouble recounted by the association s witnesses is true; however, he says that there is no problem now. Connie Guastavino, Anthony s mother, testified that at one point she asked Scott Fellows to move out of the unit, thinking this was the easiest way to resolve the problem. She changed her mind when she decided that her son was being abused on account of his illness. She resents his being ostracized by other residents, who get out of the pool when he goes in it and call him queer and faggot. Article X of the Declaration of Condominium provides in pertinent part as follows: (a) Occupants of condominium units shall not suffer, permit or maintain in their premises loud noises or obnoxious odors, nor any other condition or conduct which would interfere with the rights of other unit owners. * * * (j) No unit owner shall commit or permit any nuisance, immoral or illegal act in his unit, or on the common elements. * * * The association seeks an order requiring Anthony Guastavino and Scott Fell ows to cease and desist from any further actions which may create a nuisance and/or disturb the other unit owners of the condominium; further, it wants the respondent unit owners (the Guastavinos) to evict Scott Fellows from the unit and to prohibit him from living there in the future. CONCLUSIONS OF LAW The declaration prohibits any loud noises or other conduct which would interfere with the 6

7 rights of other unit owners, and any nuisance or other illegal act in a unit or on the common elements. The association showed that Anthony Guastavino and Scott Fellows have argued and fought loudly enough on several occasions to be heard by their neighbors; further, that their fights have escalated into batterings, usually by Anthony Guastavino against Scott Fellows, on several occasions. In addition, Scott Fellows has made what have been called sexually suggestive comments to some unit owners (other men) at the pool and engaged in other confrontational behavior such as staring intently at one unit owner and following him down the road a little way and throwing trash around at the Labor Day party. Anthony Guastavino has used offensive language to other unit owners and staggered drunkenly at the pool. Guastavino and Fellows both crashed the Bakers 50th anniversary party, creating a disturbance by playing the piano, arguing with Mr. Baker about leaving, insulting the Bakers daughter and yanking the tablecloth off one of the tables. The question is whether this conduct constitutes a nuisance or interferes with the rights of other unit owners. This requires a showing of more than mere annoyance or displeasure on the part of other unit owners; the association must show that the conduct actually affects the other owners rightful use of their property. The law of nuisance is grounded on the "fundamental rule that every person should so use his own property as not to injure that of another... 'Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation physically uncomfortable is a "nuisance" and may be restrained.'" Jones v. Trawick, 75 So.2d 785, 787 (Fla. 1954)(cites omitted), quoted in Baum v. Coronado Condominium Association, Inc., 376 So.2d 914, (Fla. 3d DCA 1979)(condominium association ordered to abate nuisance of excessive noise by replacing carpeting in terrazzo lobby above unit owners' unit). A nuisance is established where the property owner's use of her property is found not to be reasonable and where the disturbance complained of results in injury to the legal rights of the complaining party. Beckman v. Marshall, 85 So.2d 552, 555 (Fla. 1956); Davis v. Levin, 138 So.2d 7

8 351 (Fla. 3d DCA 1962); Baum, above, at 376 So.2d at In Beckman, the court explained that not all use of one s property which annoys or disturbs his neighbor in the enjoyment of his property is prohibited: The question for decision is... whether there is an injury to a legal right of the neighbor. The law of private nuisance is a law of degree; it generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is an appreciable, substantial, tangible injury resulting in actual, material, physical disco mfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in a trifling annoyance, inconvenience, or discomfort. (at 555, adopting and approving Antonik v. Chamberlain, 81 Oh. App. 465, 78 N.E.2d 752). Emphasis supplied. In Fairview of the California Club Condominium Association, Inc. v. Rosenfeld, Arb. Case No , Final Order (Feb. 9, 1993), the arbitrator held that the conduct of a unit owner constituted a private nuisance. The unit owner continually stopped up the condominium s plumbing by flushing cat litter, newspapers and paper towels down her toilet; left garbage outside her door instead of taking it to the dumpster, increasing the presence of roaches and other insects; and shouted, engaged in violent fights and used abusive language in her unit late at night, and used abusive language to management or unit owners who complained about the noise. As a result, other unit owners had sewage back up into their units, were afraid for their safety and were overcome with the smell of Rosenfeld s garbage. In Mission Hills Condominium Association, Inc. v. Messina and Molinar, Arb. Case No , Final Order (Oct. 29, 1996), the arbitrator held that the unit occupant caused a nuisance where she engaged in disruptive behavior 8

9 including loud and persistent yelling inside the unit; appearing unannounced and uninvited at the windows of adjacent neighbors and uttering prayers and spitting; and burning papers including mail inside the unit. In Ocean Towers Condominium Association, Inc. v. O Brien, Arb. Case No , Final Order (Nov. 21, 1994), a nuisance was established where the association showed that the unit owner appeared partially nude in the hallways, telephoned her neighbors in the early morning hours, smoked in bed causing fire, and appeared in the common areas in an inebriated state. The public intoxication of Guastavino and Fellows on the common elements and the lewd remarks and staring of Fellows is obnoxious and unpleasant behavior for the unit owners who come in contact with it. However, the discomfort experienced by the unit owners on account of this behavior is not a violation of their rights as unit owners and, therefore, is not a nuisance as they have not experienced an appreciable, tangible injury resulting in actual, physical discomfort. In contrast, the loud arguments and batterings within the confines of the Guastavino unit as well as outside on the common elements, and the action of disrupting Bakers party, constitute a nuisance. The Bakers use of the clubhouse, for which they had secured permission to conduct a private party, was breached. The loud arguments and batterings occurred at least once after the neighboring tenants had retired for the night, thus materially affecting their sleep. This conduct also resulted in one owner losing tenants who did not wish to live next door to such disruptions, thus interfering with the rental of his unit. These are appreciable, tangible injuries resulting in actual, physical discomfort. Furthermore, domestic battery is illegal and often results in serious injury and death. Judicial notice is taken of the fact that in the face of such conduct, neighbors are forced to deal with frantic appeals for help from the battered partner, that involvement with the battered 9

10 partner subjects them to possible physical harm and that the police must be summoned. The batterings and arguments occurred twice in January, 1997, once in March, 1997, and again in June, They have not been repeated since. Anthony Guastavino, the primary batterer, says that he was on medication for his terminal illness and needed counseling. Since he obtained a correction of his medication and counseling, the batterings and domestic arguments have virtually ceased. Prior to this six-month period, Anthony Guastavino and Scott Fellows apparently lived together peacefully. The association seeks an order requiring that the respondents cease their nuisance behavior and that Fellows vacate the unit. To justify the issuance of an injunction, a prospective injury must be more than a remote possibility. It must be so imminent and probable as to reasonably demand preventative action. Highpoint of Del Ray West Condominium Association Section 3, Inc. v. Mongillo, Arb. Case No , Order of Dismissal (Aug. 10, 1993). Anthony Guastavino contends that the arguments and batterings ended after his medication was corrected in April, 1997, and he obtained counseling. The incident at the clubhouse, in December, 1997, contradicts Guastavino s claims that the nuisance activity has ceased, however. While he argues that Jack Baker was the instigator of the clash, it appears that Guastavino and Fellows were intoxicated and that this, in part, precipitated the problem. Some blame must be shared by the community in general. Guastavino and Fellows have been castigated because they are gay and because Guastavino is HIVpositive. Unit owners have called them insulting names. Understandably, they were quick to feel insult when faced with being turned away at the clubhouse. However, this does not excuse their absurd antics at the party. Thus, given the repeated instances of nuisance behavior by Guastavino and Fellows, leading to the conclusion that it probably will be repeated, injunctive relief is justified. The respondents shall stop their loud arguments and fighting and respect their neighbors right not to be interfered 10

11 with. It is not appropriate to require Fellows to vacate the unit, however, although this would certainly end the batterings and arguments. This determination is based on the evidence which shows that Guastavino and Fellows function as a family unit and that Anthony Guastavino is the primary batterer. It does not seem fair to evict the person who is less responsible for the nuisance sought to be abated. Based on the foregoing, it is ORDERED: The relief requested by the association, an order enjoining the respondents from any further actions which may create a nuisance and/or disturb the other unit owners, and requiring the respondent unit owners to remove respondent Scott Fellows from the unit, is GRANTED IN PART. Respondents Anthony Guastavino and Scott Fellows shall immediately cease loud arguments and fighting on the condominium property, as well as any other actions which create a nuisance on the condominium property. Respondents Connie and Joseph Guastavino shall insure that the occupants of their unit do not create a nuisance on the condominium property. 11

12 Florida. DONE AND ORDERED this 8th day of May 1998, at Tallahassee, Leon County, Patricia A. Draper, Arbitrator Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida RIGHT OF APPEAL In accordance with Section , Florida Statutes, a part y adversely afected by this final order may appeal from the order by filing, within 30 days of entry and mailing of the order, a complaint for trial de novo with a court of competent jurisdiction within the circuit in which the condominium is located. This order does not constitute final agency and is not appealable to the district courts of appeal. CERTIFICATE OF MAILING I HEREBY CERTIFY that a true and correct copy of the forego ing was mailed by U.S. mail, postage prepaid, to Christine E. Lamia, Esq., 630 S. Orange Ave., 3rd Floor, Sarasota, FL 34236; Anthony Guastavino, 4826 Village Gardens Drive, Sarasota, FL 34234; Connie and Joseph Guastavino, 8337 Parkside Drive, Englewood, FL and Scott Fellows, 4826 Village Gardens Drive, Sarasota, FL this the 8th day of May Patricia A. Draper, Arbitrator 12