STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Alca Condominium Association, Inc., Petitioner v. Case No. 2003-07-5130 Nancy Wear, Respondent. / 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 May 20-21 and July 6, 2004, at the University of Miami in Coral Gables, Florida, with the Arbitrator and both parties present. During the hearing, both parties presented the testimony of witnesses and the tendered several documents into evidence. The parties submitted proposed recommended orders after the conclusion of the hearing. This order is entered after consideration of the complete record in this matter. APPEARANCES For Petitioner: Lilliana M. Farinas-Sabogal, Esquire Becker & Poliakoff, P.A. 121 Alhambra Plaza 10 th Floor Coral Gables, Florida 33134 1
For Respondent: Nancy C. Wear, Esquire 1234 South Dixie Hwy. Suite 337 Coral Gables, Florida 33134 STATEMENT OF THE ISSUE Whether the respondent, through her behavior, has created a nuisance by immoral, improper, offensive or unlawful use of the condominium property or has done any act that obstructs or interferes with the owners, occupants, employees or guests of other units, in violation of article X of the declaration of condominium and the rules and regulations of the association. PROCEDURAL BACKGROUND On August 2, 2003, Alca Condominium Association, Inc. (petition/association) filed a petition for arbitration naming Nancy Wear (respondent/unit owner) as the respondent. As the arbitrator was unable to serve respondent with the petition for arbitration, the arbitrator entered an order requiring service on September 4, 2003. On September 22, 2003, the association personally served the respondent. On October 15, 2003, the association filed an amended petition. On October 19, 2003, the respondent filed a motion to dismiss. The association filed a response on October 23, 2003. On December 17, 2003, the arbitrator issued an order denying in part the respondent s motion to dismiss and ordered the respondent to file an answer to the amended petition. On January 26, 2004, the respondent served a second motion to dismiss, a motion for attorney s fees and a motion to disqualify association s counsel. On February 16, 2004, the association filed a response to the second motion to dismiss, motion for 2
attorney s fees and motion to disqualify association s counsel. On March 4, 2004, the arbitrator entered an order denying the motions and requiring the respondent to file an answer. The respondent filed an answer on March 20, 2004. A formal hearing was held on May 20-21 and July 6, 2004, at the University of Miami in Coral Gables. FINDINGS OF FACT 1. The Alca Condominium is a condominium within the meaning of Florida Statutes section 718.103. The Alca Condominium Association, Inc. is the entity responsible for the administration and operation of the Alca Condominium. 2. Nancy Wear is the fee simple owner of unit 307 and has resided in her unit since approximately 1999. 3. The association presented the testimony of Taryn Davis, the owner of unit 114, who has resided at the condominium since 1989. Ms. Davis testified that the first time she met the respondent, the respondent screamed at her regarding her feeding of feral cats and acted hostile towards her. Ms. Davis testified that she was scared of respondent. 4. Ms. Davis further testified that respondent has discarded her unwanted mail on the by the mailboxes and in the hallways of the condominium property for several months. Although the Ms. Davis had not seen the respondent discard the mail, she testified that the mail had the respondent s unit number on it. Ms. Davis said she found the littering annoying. She also testified that she had seen several 3
of the respondent s signs, some reading Alcatraz, posted on the common area walls and she felt the postings were unsightly. 5. Ms. Davis also testified that she had attended meetings in the condominium and that respondent was disruptive and did not allow the regular business of the meetings to continue while she was there. Ms. Davis testified that she did not take issue with respondent s desire to be involved with the condominium, but rather with her behavior. 6. Throughout her testimony, Ms. Davis stated that she was fearful, scared and frightened of the respondent. She testified that the respondent disturbed her, made her feel uncomfortable, and that she felt harassed by the respondent. Ms. Davis testified that the respondent s actions have interfered with the peaceful possession of her unit and have affected her comfort level at the condominium. Finally, Ms. Davis testified that she believed that the respondent s actions would continue to affect her this way in the future. 7. The association presented the testimony of Maria Salazar, the owner of unit 309, who has resided in the condominium since approximately 1977. She was a board member for approximately six years, though she is not a current member of the board. 8. The first time Ms. Salazar met the respondent, the respondent was screaming and swearing at her. 9. Ms. Salazar testified that she had witnessed the respondent s postings on the common area hallways and the respondent s defacing of official board postings 4
in the common areas. She testified that she removed certain of respondent s postings from the common areas because she found them embarrassing. She testified that before the respondent moved in, the association had never had a problem with defacing or removal of official board postings. She testified that just a few weeks before the final hearing, she witnessed respondent removing an official board posting from the common areas. 10. Ms. Salazar also testified regarding a number of experiences she had with the respondent related to workers and employees. She recalled an incident where the association had hired a worker to polish the floors of the common areas and that the respondent interfered with the worker and did not allow him to complete his work. She also testified as to another incident where the respondent verbally assaulted a carpenter that Ms. Salazar hired to do work in her unit. She witnessed the respondent screaming at the carpenter regarding where the carpenter could park (he was parking in Ms. Salazar s parking space with her permission). Ms. Salazar testified that the respondent had caused so many problems interfering with tenants and workers, that she had difficulty recalling them all; that it was a continuous problem. 11. Ms. Salazar also recalled the respondent accosting a tenant because the tenant had an expired auto tag, which the respondent deemed unacceptable. 12. Ms. Salazar testified that food trays left by her front door had been taken on several occasions. Ms. Salazar testified that on one occasion she 5
witnessed the respondent running down the hallway after throwing the food containers, taken from Ms. Salazar s front door, down the hall. 13. Ms. Salazar testified that she also witnessed the respondent s mail discarded on the common areas in front of the mailboxes and upstairs in the common areas on numerous occasions. 14. Ms. Salazar testified that the condominium is not as peaceful as it was before the respondent moved in and that the respondent has affected her comfort level at the condominium. She also testified that she believed that the respondent s improper behavior and actions will continue in the future. 15. The Association also presented the testimony of Maria Avila, the owner of unit 304, who has resided at the condominium since approximately 1994. Ms. Avila testified that as a result of the respondent s behavior, living at the condominium is now uncomfortable. 16. Ms. Avila testified that the respondent s behaviors were aggressive and annoying. Ms. Avila testified that the respondent s aggressive behavior toward people that were providing services to the condominium or its residents, and her screaming and arguing with others caused her discomfort. 17. Ms. Avila specifically testified as to an incident where a worker came to give her an estimate for some work to be done at the condominium and that the respondent began offending him and interfering with their conversation in a harassing way. When the worker left he advised Ms. Avila that he would not agree to do the work because of the incident with the respondent. Ms. Avila has also 6
witnessed the respondent being aggressive toward the lawn service people that work for the association and toward movers assisting residents move in and out of the building. 18. Ms. Avila also testified that the respondent has placed postings on the common areas. Ms. Avila testified that on one occasion the respondent glued a posting to a wall and that the removal of the posting caused damage to the common property. 19. Ms. Avila testified that the respondent would not allow the regular conduct of board business to occur at board meetings because she failed to follow the rules and regulations for conduct at board meetings and she would not let others speak. 20. Finally, Ms. Avila testified that the respondent s actions affected her comfort level in the condominium, that the respondent interfered with the peaceful possession of her unit and that of her neighbors and that the respondent s actions would continue in the future. 21. The Association also presented the testimony of Donald Morris, the owner of unit 303, who has lived in the condominium since 1995. 22. Mr. Morris testified that he had noticed a build up of old mail in front of the respondent s apartment door from time to time. 23. Mr. Morris testified that he witnessed the respondent interrupt association meetings and was annoyed by her derogatory remarks and constant interruptions at some of the meetings he attended. 7
24. Mr. Morris testified that he witnessed the respondent interfere with and upset an air conditioning repairman who had parked in his parking space (though he did not object to the repairman parking there). 25. The Association presented the testimony of Dan De Aguero, who has lived at the condominium since 1975. Mr. De Aguero has been a board member for a number of years and is a current board member. 26. Mr. De Aguero testified that the respondent had glued an unauthorized posting on the condominium wall that had caused damage to the common area hallway. Mr. De Aguero testified that although the Association made a demand on the respondent that pay for the damage done to the wall as a result of the posting, the respondent has never remitted payment. Mr. De Aguero testified that the respondent had defaced official board postings. He further testified that the respondent had asked him to leave one of her unofficial postings up for 24 hours. 27. Mr. De Aguero testified that the respondent had discarded unwanted mail on the common areas. He indicated that there was so much of the respondent s unwanted mail that the board of directors began collecting it in boxes and keeping it in the meeting room as proof of her actions. He testified that he was annoyed with the litter and that he received complaints from other owners about it. 28. Mr. De Aguero testified that the respondent disrupted board meetings and the board was unable to continue with the regular conduct of the business. He testified that the respondent's disruptive behavior continued after the board 8
enacted rules and regulations regarding unit owner conduct at board meetings. These rules were enacted based upon the respondent s disruptive behavior at the board meetings. 29. Mr. De Aguero testified that the respondent had aggressively confronted and interfered with the association s lawn service workman. He testified as to other incidents regarding the respondent s aggressive behavior toward the lawn service workers as well as other residents and guests of the Association. 30. Mr. De Aguero testified that the respondent s actions annoyed him and disturbed him. He testified that the respondent s actions interfered with his peaceful possession of the property. 31. Finally, the Association presented the testimony of Steven Smith, a unit owner and the current president of the Association, who has resided in the condominium since 1995. After becoming a board member, Mr. Smith testified that the respondent raised several concerns that she had with the operation of the condominium. Mr. Smith testified that his issues with the respondent were not the substance of her concerns, but rather the manner in which she raised them. 32. Mr. Smith testified regarding the respondent s postings on the common areas and the respondent s defacing of official board postings. Despite his verbal and written demands that the respondent cease posting unauthorized items and defacing postings, she continued to do so. Mr. Smith also testified as to the damage caused by at least one of the respondent s posting on the common area hallway. 9
33. Mr. Smith testified that on numerous occasions the respondent had discarded her unwanted mail on the common areas of the condominium. He testified that on more than one occasion, a neighbor asked for his assistance in picking up the respondent s litter from their balcony area. He testified that as recently as within the month preceding the final hearing he observed litter addressed to the respondent in front of her front door. 34. Mr. Smith testified that the respondent regularly disrupts board meetings and fails to follow the rules and regulations of the association regarding board meetings. 35. Mr. Smith testified to numerous confrontations between the respondent and association workers, residents and guests. Mr. Smith testified that on two separate occasions, the respondent accused him of trespassing because the garden hose he was using to wash his car was crossing over her parking space. 36. Mr. Smith testified that the respondent has interfered with the peaceful possession of his unit and that he was annoyed and disturbed by her behaviors. 37. The respondent testified on her own behalf. The respondent testified that she has been an attorney for approximately thirty years and has lived in several condominiums over the years. The respondent did not dispute most of the testimony presented by the association s witnesses and stipulated that many of the instances of behavior and facts testified to by the petitioner s witnesses were true. 10
38. The respondent testified that she has been singled out by the Association for this action and that no one at the condominium has any complaints about her. 39. The respondent admitted that she placed the unauthorized postings on the condominium walls and that she took official board postings down so that she could have a copy of them. 40. The respondent also admitted that she defaced the official postings, but testified that she never covered any of the original writing with her comments. 41. The respondent admitted that she returned demand letters from the association s attorney unopened. 42. The respondent testified that the problems she perceives at the condominium are Her business and that She is entitled to answers. The respondent testified that workers coming onto the condominium property need constant supervision and that she feels compelled to provide supervision where the association or other unit owners are not. 43. The Association presented 73 exhibits. The Association s exhibits include board and member meeting minutes that describe the residents complaints regarding the respondent, interruptions and disruptions by the respondent and unit owner discussion regarding whether to file an action to enforce the governing documents against the respondent. The exhibits also include letters from unit owners expressing concern regarding the respondent s violation of the governing 11
documents or nuisance like behavior. The exhibits include letters from third parties concerning the respondent s behavior toward them and demand letters from the association and its attorneys asking the respondent to comply with the governing documents and cease and desist from creating a nuisance. 44. The association s witnesses presented testimony that the respondent had mailed them letters containing inaccurate information regarding the association. These mailings, while often misleading, were not of such frequency and did not contain language that could be deemed harassing or threatening such that the mailings could be deemed a nuisance. CONCLUSIONS OF LAW The instant dispute involves the rigors of community living. The respondent, while a member of the association, cannot accept that living in a community association means that she will not always get what she wants. The respondent often identifies things or issues that she wishes to change or to have addressed. She brings these concerns to the attention of the board, which is elected by the unit owners to handle these types of matters. Where the board chooses not to implement any changes to problems identified by the respondent, she does not simply take no for an answer. The testimony of the witnesses was that the respondent will simply continue to harass and bully the board, other unit owners, guests and association employees until her demands are met. While a unit owner, as part of a community association, has certain political rights regarding the operation of the association, including the right to present a dissenting opinion, the 12
respondent s actions in the instant case easily cross the line between dissent and nuisance. The testimony presented by the witnesses in this matter demonstrates that the respondent exhibits a great deal of animosity towards other unit owners, tenants, their guests and association employees, which manifests as disruptive and aggressive behavior. The respondent s actions of discarding her unwanted mail, harassing and bullying of association employees and guests, disruption of board meetings, removal of personal property from the hallways and the gluing of postings to the condominium walls are all actions that cross the line of what is acceptable behavior. The testimony presented by association, together with the exhibits, supports the claim that the respondent actively engages in conduct that is intended to disturb, annoy and interfere with other unit owners or occupants. In fact, the respondent s own testimony is clear that she engages in these behaviors because the board does not address her complaints to her satisfaction. The testimony presented by association, together with the exhibits, and indeed even the respondent s own admissions support the claim that the respondent purposefully posted signs along the common area hallways and that she purposefully discarded her unwanted mail in the common areas in protest to the boards refusal to place a garbage can in the hallway. The testimony presented by the association, together with the exhibits, supports the claim that the respondent disrupts board meetings and does not follow the properly promulgated rules and regulations related to unit owner conduct at meetings. 13
The arbitrator finds the association s witnesses on these issues of the respondent s alleged conduct to be credible. All of the witnesses called by the association described the respondent s aggressions toward association employees, guests, unit owners and workers in a similar fashion and described similar encounters with the respondent. All of the witnesses called by the association described the litter and the conduct at meetings similarly. Most of the witnesses testified as to the postings placed upon the condominium walls. Additionally, the respondent admitted to placing and gluing postings to the condominium walls and to writing upon the official board postings. Article X of the declaration states in pertinent part: (3) No nuisances shall be allowed upon the condominium property nor any use or practice which is the source of nuisances to residents or which interferes with the peaceful possession and proper use of the property by its residents. All parts of the condominium property shall be kept in a clean and sanitary condition and no rubbish, refuse nor garbage allowed to accumulate nor any fire hazard allowed to exist.... (5) Lawful Use. No immoral, improper, offensive or unlawful use shall be made of the condominium property or any part thereof... (6) Signs. No For Sale or For Rent signs or other displays or advertising shall be maintained or permitted on any part of the common elements, or apartments. The rules and regulations, of Alca Condominium Association, Inc. state in pertinent part: 8. All garbage and refuse is to be deposited only in the facilities provided in the building for that purpose.... 14
18. No apartment unit owner or resident shall direct, supervise or in any manner attempt to assert any control over any of the employees of the Association, nor shall he attempt to send any of such employees upon private business of such apartment owner or resident. The rules and regulations enacted by the board at the September 9, 2001, Board of Directors meeting state in pertinent part: A. Every unit owner or his authorized representative shall have the right to participate in meetings of the Board of Directors and Committees subject to the following rules. B. Statements by unit owners at meetings shall be restricted solely to items designated on the agenda of that meeting. No other statements shall be permitted except as may be authorized by the Board or Committee. C. A unit owner will be permitted to speak only in reference to the agenda item for which he has requested permission to speak prior to the Board meeting, or except as authorized by the Board or committee chairman. A request for permission to speak on a particular agenda item shall be made by an owner in writing or by telephoning the Association office to register the request prior to the commencement of the Board meeting. An owner who has not submitted a request for permission to speak on an agenda item prior to the commencement of the meeting, may, at the Board or committee chairman's discretion, be permitted to speak after the Board has concluded the business on the agenda, but prior to the adjournment of the meeting. No owner may speak on any item for more than 3 minutes. The respondent asserts that the activities complained of ceased several months prior to the filing of the arbitration matter and therefore the allegations regarding them are moot. While the testimony presented indicates that respondent has ceased some of the activities described since the initiation of this proceeding, the arbitrator finds that these activities demonstrate an ongoing pattern and will continue unless prohibited in the future. The association presented the testimony of witnesses to the respondent littering in front of her apartment and to the 15
respondent removing an official board posting just weeks before the final hearing. As a result, these issues have not completely ceased to recur. Also, the association presented testimony of witnesses who stated that the respondent s incidents of disturbance and nuisance would cease for a month or two and then recur. Additionally, almost every witness for the association testified that they believed that the respondent s interference with their peaceful possession of the property would continue in the future. Finally, even though it is not addressed in the pleadings, the respondent has asserted that her conduct is protected by the First Amendment to the Constitution. The right to free speech is not absolute at all times and under all circumstances. See Santa Monica Condominium Association, Inc. v. O Connor, Arb. Case No. 02-4691, Final Order (July 31, 2002). Certain categories of speech are specifically deemed not to be protected by the First Amendment. See Id., citing RAV v. City of St. Paul, Minn., 112 S.Ct. 2538 (1992) (other citations omitted). Further, the acts complained of, for the most part, do not constitute speech, but conduct. Where the purpose of conduct is the personal abuse of another, the conduct is not communication that falls under the protection of the First Amendment. Id. (citations omitted). The testimony and evidence is clear that the respondent s conduct is abusive and harassing and occurs where the respondent does not get her way. This is not protected by the Constitution. Accordingly, the defense that the respondent s behavior is protected by the First Amendment fails. 16
Based upon the totality of the evidence submitted, the arbitrator finds that the respondent engaged in the conduct complained of in violation of the above referenced provisions of the declaration and rules and regulations. The respondent s affirmative defenses are not supported by the testimony or other evidence or are not legally cognizable. Accordingly, the respondent has willfully violated the provisions of article X of the declaration and the rules and regulations of the association. Based upon the foregoing, it is ORDERED and ADJUGDED that the respondent has created a nuisance and willfully violated the cited provisions of article X of the declaration of condominium and the cited provisions of the rules and regulations of the association. The respondent shall immediately cease harassing, interfering with, confronting, screaming, offending, or verbally assaulting the residents of the condominium, their guests and workers and association employees; discarding her unwanted mail on the common areas, gluing signs to the condominium walls, posting signs in unauthorized locations, defacing signs and removing official signs of the association; disrupting board meetings; and any other actions which are intended to annoy, irritate or harass others. The respondent shall in the future comply with the cited provisions of article X of the declaration of condominium and the cited rules and regulations of the association. DONE AND ORDERED this 10 th day of August 2004, at Tallahassee, Leon County, Florida. 17
RIGHT TO TRIAL DE NOVO Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, FL 32399-1029 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 AN ADVERSELY AFFECTED PARTY 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. 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 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. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 10 th day of August 2004, to: Lilliana M. Farinas-Sabogal, Esquire Becker & Poliakoff, P.A. 121 Alhambra Plaza 10 th Floor Coral Gables, Florida 33134 Nancy C. Wear, Esquire 1234 South Dixie Hwy. Suite 337 18
Coral Gables, Florida 33134 Richard M. Coln, Arbitrator 19