12-002812RP Sabal Palm Condominiums Of Pine Island Ridge Association, Inc., On Its Own Behalf, And On Behalf Of All Owners Of Condominiums One Through And Including Eleven Of Sabal Palm Condominiums Of Pine Island Ridge vs. Department Of Business And Professional Regulation, Division Of Florida Condominiums, Timeshares And Mobile Homes Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, July 18, 2014.

Summary: Petitioner failed to meet burden to establish standing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SABAL PALM CONDOMINIUMS OF PINE

ISLAND RIDGE ASSOCIATION, INC.,

ON ITS OWN BEHALF, AND ON BEHALF

OF ALL OWNERS OF CONDOMINIUMS

ONE THROUGH AND INCLUDING ELEVEN

OF SABAL PALM CONDOMINIUMS OF

PINE ISLAN D RIDGE,

Petitioner,

vs. Case No. 12 - 2812RP

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF FLORIDA

CONDOMINIUMS, TIMESHARES AND

MOBILE HOMES,

Respondent.

_______________________________/

FINAL ORDER

An administ rative hearing in this case was held on

November 20, 2013, in Tallahassee, Florida, before Administrative

Law Judge William F. Quattlebaum, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Christopher Mapani, Esquire

Christoph er Mapani, P.A.

10640 Griffin Road , Suite 106 - C

Cooper City, Florida 33328

F or Respondent: Ian Brown, Esquire

Garnett Wayne Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 Nort h Monroe Street , Suite 42

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issues in this case are: 1) whether the abatement of

certain requests for arbitration filed by the Petitioner

constitutes a "rule" that must be adopted by the Resp ondent ; and

2) whether P r oposed Florida Administrative Code Rules

61B - 45.0365, 61B - 50.1265 and 61B - 80.1165 are invalid exercises of

delegated legislative authority.

PRELIMINARY STATEMENT

The Florida Department of Business and Professional

Regulation, Divis ion of Florida Condominiums, Timeshares, and

Mobile Homes (Respondent), has proposed to adopt rules related to

abatement of certain requests for arbitration. On August 16,

2012, the Sabal Palms Condominiums of Pine Island Ridge

Association, Inc., on its o wn behalf and on behalf of a ll Owners

of Condominiums One through and i n cluding Eleven of Sabal Palms

Condominiums of Pine Island Ridge (Petitioner) , filed a Petition

for Administrative Determination of Invalidity of Proposed Rules.

On August 20, 2012, a Notice of Hearing was issued

scheduling the administrative hearing to commence on

September 21, 2012.

On September 6, 2012, the Petitioner filed a Motion to Amend

Petition and Motion for Continuance. On September 10, 2012, the

Petitioner filed an Amend ed Motion to Amend Petition and Motion

for Continuance. Without objection, the motions were granted by

an O rder dated September 11, 2012, and the hearing was

rescheduled to commence on December 4, 2012.

On November 8, 2012, the Petitioner filed an Unopp osed

Motion for Continuance. The motion was granted by an O rder dated

November 15, 2012, and the hearing was rescheduled to commence on

April 2, 2013.

On February 28, 201 3, the Petitioner filed an Unopposed

Motion for Continuance. The motion was grante d by an O rder dated

March 12, 2013, and the hearing was rescheduled to commence on

June 6, 2013.

On May 8, 2013, the Respondent filed an Unopposed Motion for

Continuance. The motion was granted by an O rder dated May 15,

2013, and the hearing was resched uled to commence on August 21,

2013.

On July 26, 2013, the Petitioner filed an Unopposed Motion

for Continuance. The motion was granted by an O rder dated

July 26, 2013, and the hearing was rescheduled to commence on

November 20, 2013.

On November 4, 2 013, the parties filed a Pre - Hearing

Stipulation containing a Statement of Admitted Facts. The

stipulated facts have been adopted and are incorporated herein as

necessary.

On November 8, 2013, the Petitioner filed a Motion for

Continuance. On November 12, 2013, the Respondent filed a

response in opposition to the m otion, and the m otion was denied

by an O rder entered on that date.

At the hearing, the Petitioner presented the testimony of

one witness and had Exhibits numbered 1 through 24 admitted into

e vidence. 1/ The Respondent presented the testimony of one witness

and had Exhibits numbered 1 through 4 admitted into evidence.

The T ranscript of the hearing was filed on December 16,

2013.

On December 19, 2013, the Respondent filed a Joint Motion

for Extension of Time to File Proposed Final Orders on behalf of

both parties seeking to extend the deadline for filing proposed

orders to January 20, 2014, and the request was granted.

On January 17, 2014, the Petitioner filed an unopposed

Motion for Extens ion of Time to File Proposed Final Order seeking

to extend the filing deadline to January 27, 2014, and the

request was granted.

On January 27, 2014, the Respondent filed a Motion for

Attorney's Fees pursuant to s ection 120.595, Florida Statutes

(2013) . 2 / On the same date, both parties filed Proposed Final

Orders that have been considered in the preparation of this

O rder.

On February 11, 2014, the Petitioner filed a Notice of

Filing Exceptions to Respondent's Proposed Final Order. On

February 12, 2014 , the Respondent filed a Motion to Strike the

Petitioner's Exceptions, and the m otion was granted by an Order

issued on that date.

FINDING S OF FACT

1. The Petitioner is a "condominium association" as defined

by section 718.103(2), Florida Statutes.

2. The Petitioner is responsible for the administration,

maintenance, management and operation of common elements and

other condominium property identified as Condominiums One through

and i ncluding Eleven of the Sabal Palm Condominiums of Pine

Island Ridge, w hich are residential condominiums located in

Broward County, Florida.

3. The Respondent is the state agency charged with

enforcing the requirements set forth in c hapter 718 (the Florida

Condominium Act) and related administrative rules.

4. The Petiti oner's Declaration of Condominium prohibits

owners from keeping "any pet" in an apartment, other than as

provided under rules adopted by the Petitioner.

5. The Petitioner's R ules and R egulations state as follows:

"[N]o owners are permitted pets without prior written consent of

the Board of Directors, other than a cat and/or fish. Permission

will not be granted for any pet which weighs more than twenty

(20) pounds at maturity. No lessee is allowed to keep pets

except for one cat and/or fish."

6. The Petitioner's R ules and R egulations further state

that "dogs are not permitted unless 'grandfathered' or [with]

prior approval by the Board of Directors."

7. Disputes occur between the Petitioner's Board of

Directors ( b oard) and condominium apartment own ers (owners)

related to pets prohibited under the aforementioned rules.

8. Pursuant to section 718.1255, the b oard is required to

submit a request for non - binding arbitration by the Respondent

prior to pursuing litigation in court to force compliance by an

owner with established condominium restrictions.

9. The Petitioner regularly files requests for arbitration

with the Respondent, accompanied by a $50 filing fee.

10. The Respondent employs Florida Bar licensed attorneys

on a full - time basis as arb itrators.

11. The purpose of the arbitration program is to address

the financial disadvantage owners face when involved in

litigation with condominium associations. Section 718.1255(3)

provides as follows:

LEGISLATIVE FINDINGS. --

(a) The Legislature finds that unit owners

are frequently at a disadvantage when

litigating against an association.

Specifically, a condominium association, with

its statutory assessment authority, is often

more able to bear the costs and expenses of

litigation than the uni t owner who must rely

on his or her own financial resources to

satisfy the costs of litigation against the

association.

(b) The Legislature finds that alternative

dispute resolution has been making progress

in reducing court dockets and trials and in

o ffering a more efficient, cost - effective

option to court litigation. However, the

Legislature also finds that alternative

dispute resolution should not be used as a

mechanism to encourage the filing of

frivolous or nuisance suits.

(c) There exists a n eed to develop a

flexible means of alternative dispute

resolution that directs disputes to the most

efficient means of resolution.

(d) The high cost and significant delay of

circuit court litigation faced by unit owners

in the state can be alleviated b y requiring

nonbinding arbitration and mediation in

appropriate cases, thereby reducing delay and

attorney's fees while preserving the right of

either party to have its case heard by a

jury, if applicable, in a court of law.

12. Arbitration is a quasi - j udicial proceeding. Parties

may agree to be bound by the written decision issued by an

arbitrator.

13. Arbitrators have the ability to issue subpoenas, permit

discovery, and impose reasonable sanctions for violations of

procedural rules or the failure t o comply with certain orders

issued by an arbitrator.

14. If neither party files a complaint for trial de novo in

a court of competent jurisdiction within 30 days of an

arbitrator's decision, the arbitration decision is final. Either

party can enforce t he decision by filing a petition in a court of

competent jurisdiction after the 30 days have passed.

15. Upon receipt of a request for arbitration, the assigned

arbitrator reviews the request for arbitration to determine

compliance with statutory filing requirements. Such requirements

include prior notice to the owner allegedly in violation of the

condominium restrictions, an opportunity to correct the alleged

violation , and notice that litigation will commence if the

alleged violation is not corrected. If the requirements are not

met, the arbitration request is dismissed without prejudice. If

the requirements are met, the Respondent provides a copy of the

arbitration request to the offending owner, and the owner is

required to respond to the alleged vi olations.

16. Violations of pet restrictions are commonly submitted

for arbitration, and, on occasion, an owner may defend a disputed

pet by asserting that the pet is "medically necessary" and/or

that a complaint has been, or will be, filed under an appl icable

Fair Housing Act.

17. Fair housing laws essentially provide that it is

unlawful to discriminate against any person in the provision of

services or facilities in connection with his or her dwelling

because of a handicap. Such discrimination includ es refusal to

make reasonable accommodations to rules or policies when such

accommodations may be necessary to provide a handicapped person

equal opportunity to use and enjoy a dwelling.

18. Courts have deemed reasonable accommodations to include

trained service animals and emotional support animals in cases

litigated under fair housing laws.

19. A variety of governmental agencies, including the

Florida Commission on Human Relations, have statutory

jurisdiction over disputes related to protections provi ded by

applicable fair housing laws.

20. The Respondent lacks subject matter jurisdiction to

arbitrate issues governed by fair housing laws.

21. When an owner indicates that the pet is, or will be,

the subject of a fair housing complaint, the Responden t's

arbitrators have issued orders requiring owners to demonstrate

that such a complaint has been filed. If the owner fails to

comply with the order by a time certain, the owner is deemed to

have waived the opportunity to present such a defense.

22. If the owner demonstrates that the fair housing

complaint has been filed, the Respondent's arbitrators have sua

sponte issued orders under various titles (hereinafter Abatement

Orders) that delay arbitration until the pet issue is resolved by

an appropriate a gency.

23. Either party may provide notice of the resolution to

the arbitrator after the fair housing complaint is resolved. The

case may or may not proceed to arbitration, depending on the

disposition of the fair housing complaint and whether there are

disputed issues remaining for arbitration.

24. The routine practice of abating such arbitration

requests commenced in 2005 and has continued through the date of

the hearing.

25. The Abatement Orders issued by the Respondent's

arbitrators cite no specif ic rule or legal authority for the

decision to abate a case.

26. According to 2009 - 2010 email records, the Respondent's

arbitrators have considered standardization of a procedural order

to address abatement of fair housing cases; however, arbitrators

are not required to use a specific standard order in abating a

request for arbitration.

27. The Petitioner asserts that the Respondent has no

authority to delay arbitration for resolution of a fair housing

complaint , and that arbitrators should sever fair h ousing issues

from non - fair housing issues and immediately proceed to

arbitration.

28. The Petitioner has failed to present any credible

evidence of injury caused by abatement of an arbitration so as to

permit an appropriate governmental agency to addres s an alleged

violation of fair housing protections.

29. The Respondent has not adopted rules expressly

authorizing the abatement of an arbitration proceeding.

30. By letter dated February 9, 2012, the Petitioner

notified the Respondent that it consider ed the practice of

issuing Abatement Orders to be an unadopted rule , and that the

Petitioner would file a petition for administrative hearing

unless the Respondent commenced rulemaking proceedings. A draft

of the proposed petition was included with the le tter.

31. During this proceeding, the Respondent has asserted

that the inherent ability of an arbitrator to issue an Abatement

Order is within the authority of an arbitrator to manage a case;

however, by letter dated February 24, 2012, the Respondent

not ified the Petitioner that , after reviewing the draft petition,

the Respondent had decided to initiate rule development.

32. By letter dated March 1, 2012, the Petitioner notified

the Respondent that the Petitioner would challenge any proposed

rule that w ould authorize the Respondent to "temporarily or

indefinitely" delay a request for arbitration as beyond the

statutory authority granted to the Respondent by the Florida

Condominium Act.

33. Section 718.1255 requires that the Respondent adopt

rules of pr ocedure to govern arbitration hearings. The

Respondent has adopted such rules of procedure in Florida

Administrative Code Chapters 61B - 45, 61B - 50 and 61B - 80.

34. On March 9, 2012, the Respondent commenced development

of the proposed rules at issue in th is proceeding. The

Petitioner has participated in the rulemaking process.

35. On March 16, 2012, the Respondent published Notices of

Development of Proposed Rules 61B - 45.0365, 61B - 50.1265, and

61B - 80.1165.

36. On July 27, 2012, the Respondent publishe d Notice of

Proposed Rules 61B - 50.1265 and 61B - 80.1165, which essentially

relate to requests for arbitration related to b oard election

disputes or recall of elected b oard members.

37. On August 24, 2012, the Respondent published Notice of

Development of Proposed Rule 61B - 45.0365, which relates to all

requests for mandatory non - binding arbitration pursuant to

section 718.1255.

38. On September 14, 2012, a Notice of Change was

published, amending the text of the three proposed rules to

provide as follows:

(1) The presiding arbitrator before whom a

case is pending may issue any orders

necessary to effectuate discovery, to prevent

delay, and to promote the just, speedy, and

inexpensive determination of all aspects of

the case.

(2) When a case is placed in abeyance or

abated by a non - final order, no filing fee is

necessary to re - open the case or otherwise

proceed with this matter.

39. The evidence fails to establish that the proposed rules

are an invalid exercise of delegated legislative authority.

CONCLUS IONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56, Fla . Stat .

41. Section 120.56(1) provides that any person

substantially affected by a rule or a proposed rule m ay seek an

administrative determination that the rule is an invalid exercise

of delegated legislative authority. In order to establish that

it has been "substantially affected," the Petitioner must

establish: (1) a real and sufficiently immediate injury in fact;

and (2) that the alleged interest is arguably within the zone of

interest to be protected or regulated. Ward v. Bd . of Trs . of

the Int . Imp . Trust Fund , 651 So. 2d 1236 (Fla. 4th DCA 1995).

The Petitioner has failed to establish that it is a

"su bstantially affected" party and lacks standing to challenge

the "non - rule" abatement of cases or the proposed rules

referenced herein.

42. The Petitioner has failed to establish that the

issuance of Abatement Orders by the Respondent's arbitrators

(wheth er or not such orders are within the inherent authority of

an arbitrator) cause the Petitioner any injury.

43. The Petitioner has failed to establish that it is

disadvantaged or injured in any appreciable way by the abatement

of requests for arbitration pending the resolution of fair

housing complaints by the appropriate agency, whether or not such

abatements are pursuant to a rule.

44. T he Petitioner asserts that the Respondent's sua sponte

entry of Abatement Orders without providing an opportunity for

the Petitioner to object is unfair and that , because the

Abatement Orders are non - final, the Petitioner is precluded from

seeking judicial review of such orders. The assertions do not

rise to the level of the " real and sufficiently immediate injury

in fa ct" required to establish standing in this case.

45. The Petitioner has asserted that Respondent's abatement

of arbitration requests constitutes a "rule" that must be adopted

through rulemaking. I n response, the Respondent commenced

proceedings to adopt applicable rules. Notwithstanding the

proposed rules, the Respondent has asserted during this

proceeding that an arbitrator has the inherent authority to issue

Abatement Orders and that the action does not require rulemaking.

46. The issuance of an Aba tement Order in a case commencing

with a board's request for arbitration relating to a fair housing

complaint does not constitute a "rule , " and the practice is not

invalid based on the absence of a properly adopted rule.

47. Section 120.52(16) provides, in relevant part, as

follows:

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any re quirement or solicits any information

not specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule.

48. A rule is an agency statement that requires compliance,

creates certain rights while adversel y affecting others, or

otherwise has the direct and consistent effect of law. Volusia

Cnty . Sch. Bd. v. Volusia Homes Builders Ass'n , 946 So. 2d 1084,

1089 (Fla. 5th D CA 2006).

49. The Abatement Orders at issue in this proceeding are

nothing more than p rocedural orders entered to facilitate the

resolution of fair housing issues by appropriate agencies. The

Abatement Orders create no rights, adversely affect no party, and

do not have the direct and consistent effect of law. Not every

activity of an admi nistrative agency is controlled by the Florida

Administrative Procedures Act. Dep't of Transp. v. Blackhawk

Quarry Co. of Fla., Inc. , 528 So. 2d 447, 449 (Fla. 5th DCA

1988).

50. In response to the Petitioner's letter dated

February 9, 2012, the Respond ent commenced proceedings to adopt

rules supporting the issuance of Abatement Orders. The

Petitioner has asserted that the p roposed r ules identified herein

are an invalid exercise of delegated legislative authority.

Section 120.52(8) provides the followi ng relevant definition:

"Invalid exercise of delegated legislative

authority" means action that goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing rule

is an invalid exercise of delegated

legislative authori ty if any one of the

following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of la w

implemented, citation to which is required by

s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

ad equate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thou ght

or reason or is irrational; or

(f) The rule imposes regulatory costs on the

regulated person, county, or city which could

be reduced by the adoption of less costly

alternatives that substantially accomplish

the statutory objectives.

A grant of r ulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling st atute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the a uthority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than impl ementing or interpreting the

specific powers and duties conferred by the

enabling statute.

51. The Petitioner has failed to establish that it has been

affected by the Respondent's proposed rules 61B - 50.1265 and

61B - 80.1165 in any manner whatsoever.

52 . As to p roposed r ule 61B - 45.0365, the evidence fails to

establish: that the Respondent has materially failed to follow

applicable rulemaking procedures; that the proposed rules

enlarge, modify, or contravene the specific provisions of law

implemented; th at the rules are vague, fail to establish adequate

standards for agency decisions, or vest unbridled discretion in

the agency; or that the rules are arbitrary or capricious. There

is no evidence that the rules impose regulatory costs on any

regulated pers on.

53. Finally, the evidence fails to establish that the

proposed rules exceed the Respondent's rulemaking authority. The

authority for rulemaking cited in the proposed rules is section

718.1255(4), which requires the Respondent to adopt rules of

proce dure to govern arbitration hearings.

54. The proposed rules identify sections 718.1255(3)(c) and

718.1255(4) as the law implemented. Section 718.1255(3)(c)

establishes the "need to develop a flexible means of alternative

dispute resolution that directs disputes to the most efficient

means of resolution."

55. The Respondent has no statutory authority to arbitrate

issues presented by fair housing claims. The Respondent's

abatement of such arbitration requests, and its deference to

appropriate other agen cies, directs such disputes "to the most

efficient means of resolution."

56. The Petitioner suggests that the Respondent should

sever fair housing issues from requests for arbitration and

immediately proceed to arbitrate whatever issues remain. Such a

p rocess would be innately inefficient. It would require an owner

to simultaneously defend against a board in two separate actions

and would require a second arbitration if the fair housing

complaint was ultimately determined to be unfounded. Such a

proces s would be contrary to the L egislature's stated intent that

the dispute resolution process be designed to remedy the

disadvantage of an owner in litigating against an association.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that :

1. The Amended Petition for Administrative Determination of

Invalidity of Proposed Rules filed by the Petitioner in this case

is hereby DISMISSED.

2. Jurisdiction is reserved to consider the Respondent's

Motion for Attorney's Fees (Motio n) . The Petitioner is directed

to file a response to the Motion within 30 days from the date of

this Final Order. Failure to file a response will be deemed to

indicate that the Petitioner concurs with the Motion and will

result, without further notice, i n entry of an order granting the

M otion.

DONE AND ORDERED this 10th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSot o Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of March , 2014 .

ENDNOTE S

1/ Copies of the Pe titioner's E xhibits 2 2 through 24 were not

submitted during the hearing. Exhibit 22 was identified as all

exhibits attached to the Amended Petition. Exhibit 23 was

identified as c hapter 718, Florida Statutes. Exhibit 24 was

identified as Florida Adminis trative Code Chapters 61B - 45, 61B - 50

and 61B - 80 .

2/ Unless otherwise noted, all statutory references are to

Florida Statutes (2013).

COPIES FURNISHED:

Michael Cochran, Division Director

Division of Florida Condominiums,

Timeshares and Mobile Homes

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe St reet

Tallahassee, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures

Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399

(eServed)

Liz Cloud, Program Administrator

Administrative Code

D epartment of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

Ken Lawson, Secretary

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Christopher Mapani, Esqu ire

Christopher Mapani, P.A.

10640 Griffin Road , Suite 106 - C

Cooper City, Florida 33328

Ian Brown, Esquire

Garnett Wayne Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any fil ing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.