SCANNED VERSION

 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION DIVISION OF FLORIDA 

LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

IN RE: PETITION FOR ARBITRATION

Bonavida Condominium

Association, Inc.,

Petitioner,

V.                                                    Case No. 2004-06-0224

Joyce Starr and Rueben Starr,

Respondents.

  _____________________________________/

Respondents’ Request that the Arbitrator Dismiss the Amended Petition

and Provide other Related Relief

COMES NOW the Respondents in the above-entitled action, by and through their undersigned Qualified Representative, and hereby file this, Respondents’ Request that the Arbitrator Dismiss the Amended Petition and Provide other Related Relief as set out more fully below, and in support thereof Respondents state the following:

Petitioner Violated the Arbitrator’s Order dated 14^th October by Failing to Seek in Good Faith an Amendment to the Bonavida Condominium Declaration (the “BCD”) to Permit Owners to Maintain One Cat in Their Unit

1.                  The Arbitrator’s Order dated 14^th October 2005 authorized a temporary abatement based on Petitioner’s undertaking to seek an amendment to the BCD to permit owners to maintain one cat in their unit.

2.                  Article VI of the BCD, captioned “METHOD OF AMENDMENT OF DECLARATION”, sets out the required procedure for amending the BCD.  It clearly provides that the BCD “may be amended at any regular or special meeting of the unit owners”, “called or convened in accordance with the By-Laws", by the “affirmative vote of Voting Members casting not less than three-fourths (3/4ths) of the total vote of the members of the Association.”[1]

3.                  Petitioner failed to follow the procedures mandated by Article VI of the BCD, and failed to comply with the Arbitrator’s Order.  In particular, Petitioner failed to make bona fide, good faith efforts: (1) to call a meeting of unit owners as required by Article VI; (2) to hold a meeting of unit owners to vote on an amendment to the BCD, as required by Article VI; or (3) to amend the BCD as contemplated by the Arbitrator’s Order.  Instead, Petitioner pursued a course of action that it knew or should have known would create doubt and confusion and ensure the failure of an attempt to amend the “no pets” clause of the BCD.

4.                  Firstly, no meeting of unit owners was properly convened by Petitioner.  Article III, Section 4, of Petitioner’s By-laws requires that in the circumstances present here, only the President is empowered to call the meeting.  However, the President did not call the meeting.  Rather, Petitioner pursued a course of action that was not sanctioned by the BCD or other rules of the Condominium, and had no precedent in the Bonavida’s history.

5.                  Petitioner arranged for an undated and unsigned letter to be sent to unit owners on November 15, 2005.  The letter enclosed the text of a proposed amendment of Article XII of the BCD and called for a mail ballot on the proposal (see Annex 1 for text of the letter and enclosures).  The letter did not explain why the amendment was being proposed, or why a mail balloting procedure was being followed.  As Petitioner knew, mail balloting had never previously been used to amend the BCD.

6.                  The letter wrongfully and deceptively indicated that it had the approval of the Board of Directors: The initials “B.O.D.” appeared at the bottom of the letter, clearly indicating to unit owners that the letter was being by or on the authorization of the Board of Directors.  In fact, the Board never met to discuss the matter, nor did the Board consider the proposed amendment or the procedure set out in the letter, i.e. a mail ballot on a proposed amendment of the BCD.  At a meeting held on November 30, 2005 (discussed below), Marilyn Krisbergh, President of the Association, confirmed that the Board neither considered nor approved the proposed amendment.

7.                  The letter further wrongfully and deceptively stated that a “special meeting” would be held on Wednesday, November 30, at 7:00 p.m., in the condominium’s meeting room, “for the purpose of deciding on the proposed enclosed amendment to the declaration” and that “[i]n this package is a ballot and enclosed envelope to be returned to Glazer and Associates.”  The enclosed envelope provided for each unit owner to sign the outside of the envelope and to write his/her unit number on the outside of the envelope.  Unit owners were asked to send the envelopes with the completed ballots to Glazer and Associates.

8.                  As Petitioner knew or should have known, this tactic (1) wrongfully and deceptively suggested that the Board had sanctioned the mail ballot procedure; (2) created confusion as to the amendment process (notably as regards the purpose of the “special meeting” to be held on November 30); and (3) intimidated unit owners.

9.                  The BCD calls for a regular or special meeting of unit owners to amend the BCD.  The letter stated that a special meeting would be held to decide on the proposed amendment, but then went on to ask unit owners to complete a ballot and send it by mail to Glazer & Associates.  If a meeting of unit owners was being called to amend the BCD, why wasn’t the meeting called by the President, as required by the By-Laws?  Why were unit owners asked to mail ballots, if a “special meeting” was to be held “for the purpose of deciding on the proposed amendment”, as stated in the letter?  Balloting for amendments to the BCD was not consistent with Article VI of the BCD and unprecedented.  Why were unit owners asked to send ballot envelopes to the Glazer law firm, with their signatures and unit numbers on the outside of the envelopes?

10.              These tactics caused confusion and intimidated many unit owners.  As documented in previous filings by Respondents, Eric Glazer’s previous actions and conduct in relation to this matter had been strongly criticized by many unit owners, and with good reason.  Petitioner knew or should have known that many unit owners would be reluctant to send any communications to the Glazer law firm, and that they would be suspicious of any role played by the Glazer law firm in connection with any amendment process.  Mr. Glazer’s questionable conduct in relation to this case is a matter of public record.

11.              In such circumstances, many unit owners would, of course, have been reluctant to participate in such a “ballot” process, and to sign their names and indicate their unit numbers on the outside of envelopes containing “ballots” that were to be returned to the Glazer law firm, as requested by Petitioner’s letter.  Such reluctance by unit owners would have been entirely reasonable, since the BCD mandates a specific procedure for its amendment that was not followed here.  Why did Petitioner follow such a questionable process, particularly in these circumstances, when it surely must have taken advice on this from the Glazer law firm.  Petitioner knew or should have known that the BCD called for amendments to be approved at duly convened meetings of unit owners, and that the amendment procedure set out in the letter to unit owners would create confusion among the unit owners and ensure that no amendment would be approved by the mail balloting process-which was unprecedented at the Bonavida.[2]

12.              Although a meeting was held on Wednesday, November 30, 2005, the President, Marilyn Krisbergh, who chaired the meeting, declared that no vote on the proposed amendment would be taken.  She made it clear that the “meeting” was neither a regular nor a special meeting of unit owners, convened to vote on a proposed amendment (as required by the BCD).  Rather, she insisted that the sole purpose of the meeting was to announce the results of the “balloting” of unit owners, not to discuss or vote on the proposed amendment.  She said that there was no reason to call the meeting to order because it wasn’t really a “meeting.”  She said that it was just a question of counting the ballot votes that had been sent to Attorney Glazer’s office and received to date.  After being roundly criticized by a number of unit owners who came to the meeting, she finally agreed to call it to order, but only to announce that there were not enough ballot envelopes returned to justify opening the ballot envelopes and counting the ballots.

13.              At the November 30 meeting there was no discussion of or vote on the proposed amendment to the BCD.  Attorney Glazer- who knew or should have known the procedure mandated in the BCD for its amendment- was present at the meeting, and falsely and deceptively claimed that the Bonavida Condominium documents provide for such mail balloting to amend the BCD.  As he knew or should have known, that is simply not true.[3]

14.              Even assuming, arguendo, that a balloting procedure was legally permissible to amend the BCD, Petitioner’s lack of good faith in carrying out the Arbitrator’s Order is demonstrated by its unwillingness to allow sufficient time for the amendment process.  As noted above, the balloting process was initiated by a mailing to unit owners on November 15.  The President announced on November 30 that only 75 ballot envelopes had been returned by that date, that there were a total of 144 unit owners, and that 108 votes in favor were needed to adopt an amendment.

15.              It was to be expected that there would be insufficient numbers of ballots sent in by November 30.  The confused “balloting” process that was followed, and the short time between the date the letter was sent to unit owners and November 30,  ensured that there would not be a sufficient number of responses.  There was no need to close the ballot voting on November 30, if such a voting procedure was legally permissible.  The reference to holding a special meeting on November 30, in the letter to unit owners, could only have been designed to confuse unit owners and ensure that the amendment process would fail.

16.              It was well-known to the President and the other members of the Board that many unit owners do not live at the Bonavida.  The Condominium’s mailing statistics indicate that over 25% of the unit owners (38 of 144 unit owners) do not live at the Bonavida.  Not surprisingly, almost all of these unit owners failed to return their “ballots” by November 30.  The letter to unit owners was deceptively confusing as to whether or not ballots had to be received by that date.  Moreover, if a ballot voting process was legally permissible in this instance, then there was no need to hold a meeting only 15 days after the mailing to unit owners.  Had Petitioner been acting in a bona fide, good faith manner, it would have had no reason to close off the voting at that date.  Had more time been given for the process, and/or had the amendment process been properly carried out and explained, the results would no doubt have been very different, whether through a balloting process or through a vote at a duly convened meeting of unit owners.

17.              At the meeting held on November 30 Attorney Glazer stated that insufficient numbers of ballot envelopes had been received by that date, but said that the Association could keep the mail ballot procedure open and solicit ballots from unit owners who had not responded.  Of course, had that been done, a sufficient number of responses could have been obtained to allow the Association to claim that the amendment had been approved by the ballot vote.  However, the President, Marilyn Krisbergh, and her cohorts on the Board, were determined to see the amendment fail.  Immediately after Attorney Glazer’s statement about allowing more time for the process, the meeting was briefly adjourned and Mr. Glazer met privately with the President and her cohorts on the Board.  When they returned and the meeting resumed, Mrs. Krisbergh’s cohort on the Board, Steven Weisberg, moved that the meeting be closed, there was a second to that motion, and Mr. Weisberg announced that the amendment matter was “closed”.  Mrs. Krisbergh stated that she agreed, and she adjourned the meeting.  Thus, the balloting was effectively closed off without allowing any more time for receipt of ballots.

18.              Clearly, Mrs. Krisbergh and her cohorts decided to rely on the fact that lack of sufficient numbers of ballots had been received by November 30 as a pretext for closing the balloting process at that time, to preclude the option that with the benefit of more time, sufficient numbers of unit owners would in fact “vote” in favor of the proposed amendment to the “no pets” clause of the BCD.  It is difficult to imagine a more clear-cut case of bad faith in this respect.

19.              Many unit owners present at the “meeting” pleaded for a solution that would put an end to this arbitration case, since the legal fees being paid by the Association to the Glazer law firm in connection with the present case were reported to be a huge financial drain on the Association.  The continuance of the case is widely viewed by unit owners as benefiting only the Glazer law firm, to the detriment of the Association.  Allowing more time for the balloting process would surely have made it possible to find a solution that could have effectively “mooted” this case.  But Mrs. Krisbergh and her cohorts refused to accept the approach publicly suggested by Mr. Glazer, that could effectively have allowed for the “grandfathering” of Respondent Joyce Starr’s cat and permit this case to be declared moot, as the Arbitrator contemplated in his Order.

20.               Thus, the Petitioner has clearly failed to comply with the Arbitrator’s Order in good faith, and forfeited its right to continue to pursue this case.  Petitioner now fails to satisfy the requirement that it demonstrate “clean hands”, in order to be permitted to maintain this action (which is equitable or quasi-equitable in nature), and the amended petition should now be dismissed on this ground alone.

There is no material fact in dispute regarding Respondents’ claim that Respondent Joyce Starr’s cat is now “grandfathered” as a matter of law

21.               As demonstrated in the documents previously filed by Respondents, including numerous uncontested signed statements, prior to the action taken against Respondent Joyce Starr there had been a three decades long policy and practice at the Bonavida Condominium Association (since unit owners first moved there in the early 1970s), not to enforce the “no pets” clause of the BCD against unit owners keeping cats in the circumstances present here.  There is overwhelming uncontested documentary evidence that Respondents’ pet cat and many other pets have been kept by unit owners/residents over the past three decades, with the knowledge of the Board during the relevant periods, without any enforcement action being taken against the respective owners/residents (prior to the present action against Respondents).[4]  This uncontested documentary evidence even confirms that many former and current board officers have kept pet cats, birds and dogs in their units and have been aware of pets kept by other unit owners during their tenure in office, and that no enforcement action had ever been taken in any of those cases previously- until the present case was filed against Respondents.[5]

22.              Respondents Reuben Starr and Joyce Starr have kept their pet cat in unit # 1604 since mid-1996- a period of more than eight years before the filing of the present case.  A large number of present and former Board members have been aware of the presence of Respondents’ cat in unit 1604 since the cat was brought into the unit, and long before the original petition was filed against Respondents in this case.  These present and former Board members include Sylvia Meyerson, Blanche Szita, David Katus,, Florence Semet, Steven Weisberg, Marilyn Krisbergh and Millie Kohn.  Yet, no “enforcement” action was taken against Respondents until November 2004.

23.              To appreciate the importance of the uncontested statements supplied by Respondents, it is worth noting that Ginger Grossman served on the Board over various years between 1977 and 1985; that Milton Stark served on the Board over various years from 1988; that Blanche Szita served on the Board over various years from 1991; that David Katus served on the Board over various years from 1992; that Art Grossman served on the Board over various years from 1992; that Herb Kolesky served on the Board in 2003-2004; that current Board member and Secretary Sylvia Meyerson has served on the Board for over 12 years from 1985; that current Board member and Vice-President Steven Weisberg has served on the Board over various years from 1997; that current Board member Mildred Kohn has served on the Board over various years from 1999; that current Board member and Treasurer Selma Gordon has served on the Board over various years from 2001; and that current Board member and President Marilyn Krisbergh has served on the Board over various years from 2002.

24.               It is an incontrovertible fact that the Respondents kept the cat in unit 1604 for over eight years, openly, with knowledge of numerous former and present Board members, as well as many other unit owners, before this action was filed on November 29, 2004.  Petitioner was aware or should have been aware of this fact.

25.               If, arguably, Respondents had violated the “no pets” clause of the BCD when they brought the cat into their unit in 1996 and kept it in the unit since that time, the undisputed facts demonstrate that Petitioner had actual or constructive knowledge thereof, and that Petitioner had ample opportunity to observe any such alleged violations of the BCD, but clearly neglected to do so, or ignored the violations.  See Summary Final Order dated February 8, 2005, by Arbitrator Melissa Mnookin, in Debra A. Grogis and Joshua Grogis, v Marina Harbour South Association, Inc., DBPR Case Nos:  2003-07-5139 and 2003-09-5940.

26.               Clearly, in such circumstances, Florida’s statute of limitation is a bar to this action, brought nearly eight and one half years after the cat was brought into the unit.  The amended petition should be dismissed on this ground alone.  See, e.g., Sheoah Highlands, Inc., et al. v. Vernon Daugherty, et. al., 5^th District Court of Appeal, State of Florida, Case Nos. 5D01-3181 and 5D02-277, Opinion filed February 14, 2003.

27.               In any event, Florida’s case law and the well settled arbitration practice under DBPR auspices compel dismissal of the amended petition in this case on well-settled principles of “waiver” and “estoppel” and also on the doctrine of “laches”, again based on the undisputed facts in this case, as set out in Respondents’ Exhibits.  All of the requisite elements of the affirmative defenses of “waiver”, “estoppel” and “laches” are fulfilled here, based on the undisputed documentary evidence submitted by Respondents.  As amply demonstrated in numerous statements contained in Respondents’ Exhibits, there was a long, continual and conscious wavier or acquiescence by the Petitioner, by actual or constructive notice, of obvious, persistent and widespread violations of the “no pets” clause of the BCD by many unit owners, including members of the Board, over many years before and after mid-1996, when the Respondents brought the cat into their unit 1604.  This fact cannot seriously be disputed.

28.               Respondents also had every reason to believe, at the time they brought the cat into the building in mid-1996 (openly and without attempting to hide this) and at all times thereafter, based on actions and statements of numerous Board members over many years before and after 1996, and based on the history of non enforcement of the “no pets” clause in respect of cats since the building was first occupied in the early 1970s, that the presence of the cat in their unit would be accepted and that no action would be taken against them for violating the “no pets” clause of the BCD.  As amply demonstrated by numerous uncontested statements contained in Respondents’ Exhibits, many Board members since mid-1996 have known of the presence of Respondents’ cat in unit 1604.  Such knowledge, even if acquired in a social setting, must be imputed to Petitioner.  During all those years it was never alleged by the Board or by any Board member or by other unit owners that the presence of Respondents’ cat in unit 1604 constituted a violation of the BCD.

29.               Respondents do not rely on mere silence by Board members or other unit owners, or acquiescence or even verbal “permission” by one or even a few Board members.  The facts here demonstrate (1) a strong, consistent pattern of “representational conduct” imputable to Petitioner, (2) that Respondents reasonably relied on such “representational conduct”, and (3) that Respondents reasonably took the acquiescence by a large number of past and present board members over many years as approval.

30.               It should also be noted that during all the years since the cat has been in unit 1604, no complaint has been made by any other unit owner that the cat’s presence had been a nuisance, or that the possession by Respondents of the cat was interfering in any way with any rights of other unit owners.

31.               In such circumstances, it is difficult to imagine a more clear-cut case for application of the principles of estoppel or waiver, as these principles have been applied in the Florida courts and in previous DBPR arbitrations.  Is clear that by its conduct and behavior here, Petitioner should be deemed to have intentionally or voluntarily relinquished its right to enforce the “no pets” clause of the BCD in respect of Respondents’ cat

32.               As noted above, there is overwhelming and undisputed documentary evidence that the “no pets” clause of the BCD was not previously enforced.  Under existing Florida law, the Bonavida Condominium Association may, of course, decide to begin enforcing the “no pets” clause of the BCD even if the clause was not enforced previously.  However, in that event it can only do so prospectively, after providing unit owners with notice of its intention.  See, e.g., Summary Final Order by Arbitrator Tyler Powell, November 3, 2000, in Majorca Towers Condominium, Inc., v Jorge Gonzalez-Barrera, DBPR Case No. 99-1127, and Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So. 2d 29 (Fla. 3^rd DCA 1985). 

33.               However, Petitioner has chosen not to follow that route here.  Prior to the present action taken against Respondents, the Board never took at decision to begin enforcing the “no pets” clause of the BCD, and no notice has been provided of the Board’s intention to begin enforcement.  Rather, the Board had given every indication that it would put the issue “on hold” pending a review by unit owners at a duly constituted meeting of unit owners.  At the only meeting during which the Board considered the question of the “no pets” clause of the BCD, held on November 29, 2004 and widely attended by unit owners (the same day that this case was filed), the Board decided to hold a special meeting of unit owners to consider proposals for amending the clause.

34.               The only reasonable interpretation of the Board decision of November 29 is that the Board expected any enforcement actions to be put on hold, pending review of the “no pets” clause at a special meeting of unit owners.  As previously documented in Respondents’ filings, the President willfully failed to convene the meeting of unit owners, despite demands that the Board decision be honored. That is clear evidence of lack of good faith, imputable to Petitioner.

35.               Further evidence of Petitioner’s lack of good faith is the fact that this case was filed on the same day as the Board meeting held on November 29, 2004.  The filing of this case, at the instigation of Board President Krisbergh and her crony, Treasurer Selma Gordon, was clearly incompatible with the letter and spirit of the Board’s decision taken on the same day.

36.               Even if the Board had taken a decision to begin enforcing the “no pets” clause of the BCD prospectively, and had given notice of this to unit owners, or even if the Board did so in the future, the cat now kept by Respondents in unit 1604 would be “grandfathered” as a matter of law.  Respondents do not contest that if Petitioner follows the correct procedures in the future, Respondents might be barred from bringing a new pet into their unit in the future.  However, as a matter of law, the cat now in their unit must be considered as “grandfathered”.

37.               It is also clear from Respondents Amended Answer, filed on September 14, 2005, and uncontested documentary evidence in the form of statements by unit owners set out in Respondents’ Exhibits cited herein, that the defense of selective enforcement is also available to Respondents.  Respondents reserve their right to assert this defense, but do not rely on it for purposes of the present motion to dismiss and request for other relief claimed herein.  Each of Respondents’ other defenses set out above is more than adequate, standing alone, to require dismissal of the amended petition in this case.

38.               Respondents also reserve their right to assert other defenses available to them, as detailed in previous filings, should the present motion to dismiss be denied, and should a hearing be scheduled in this case. 

39.               Respondents wish to emphasize that for purposes of the present motion to dismiss and request for other relief, they do not rely on any defenses that would require factual proof that needs to be developed in a hearing.  Rather, they consider that the defenses available to them, based on the undisputed factual record established in this case, require dismissal of the amended petition without a hearing.  There is now no need to hold a hearing to resolve any disputed factual issues, as there are none.  Even if there were any factual issues in dispute, such issues would not affect the disposition of this case since dismissal of the amended petition is already justified based on facts that are beyond dispute.

40.               Respondents do not want to see their fellow unit owners at the Bonavida suffer further grief and expense.  While reserving their right to a full hearing, Respondents now contend that a full hearing is wholly unnecessary, and would in any case only play into the hand of Board President Marilyn Krisbergh and her cronies on the Board, as well as attorney Eric Glazer, who have demonstrated that they do not want this case settled on terms that would allow Respondents to keep the pet cat in unit 1604.  Their demonstrable deceptions and cynical behavior in attempting to pursue this frivolous claim against Respondents is contemptible.  They are seeking to keep this pot boiling, in a case that is widely understood by unit owners to be against the interests of unit owners, and a costly diversion from the urgent problems of the Bonavida Condominium.  It is a matter of record that many unit owners who are informed about the facts of this case are highly critical of the conduct of Mr. Glazer, Mrs. Krisbergh, and her cronies on the Board.  Those unit owners know that all unit owners are being asked to foot the bill for this ill-conceived “enforcement action”, initiated last year by two rogue Board members, without Board approval.

41.                For the reasons set out above and in previous filings, it is inconceivable that Respondents would not prevail on at least one of the defenses available to them here, either in this arbitration proceeding or in a de novo court hearing.

42.               In these circumstances, and for the reasons set out above, there is a compelling case for dismissal of the amended petition at this time, with prejudice, to avoid the wholly unnecessary step of holding a full hearing in the matter, which would involve huge additional costs for the Association, and be a waste of time and effort for all concerned, particularly for the DBPR.

Other material errors by Petitioner and Petitioner’s counsel also compel dismissal of the amended petition

43.               Respondents have amply documented in their previous filings the repeated failure by Petitioner to allow requested inspection of books and records of the Association as required by statute, and the repeated failure by Petitioner’s counsel to abide by the rules set out in Chapter 61B-45.

44.               Petitioner has flagrantly violated the applicable legal standards set out in relevant Florida law, including without limitation Chapters 617 and 718, FS, all as detailed in previous filings by Respondents.

Request for Relief:

45.               Accordingly, Respondents respectfully request that the Arbitrator enter an Order (1) finding that Petitioner has willfully and intentionally failed or refused to comply with a lawful order of the Arbitrator and with the rules set out in Chapter 61B-45, F.A.C., (2) dismissing the amended petition filed and imposing costs and attorney’s fees against Petitioner, and (3) denying Petitioner the right to re-file an arbitration claim against Respondents based on their keeping the pet cat now in unit 1604 in alleged violation of the “no pets” clause in the BCD.

WHEREFORE, Respondents respectfully request the Arbitrator to provide the requested relief.

29 December 2005

CONDO ARTICLES