Florida ROC : Florida Mobile Home & RV Lawyer & Attorney : Scott Gordon : Lutz Bobo Telfair Eastman Gabel & Lee Law Firm : FL Condo & Homeowners Associations

One of our ROC managers recently contacted me about a resident who claimed that the community was violating the Health Insurance Portability and Accountability Act of 1996 (often referred to as the "HIPAA laws").   While the community's rules and regulations did not allow pets, several exceptions to the "no pet" rules had been granted.   The manager and the board had compiled a list of the names and addresses of each person permitted to have a pet in his or her home and the complaining resident was certain that by creating  this list the community had violated HIPAA.

The HIPAA laws create a "privacy rule" that prohibits certain "protected health information" from being disclosed.  This "privacy rule" applies to the following persons and businesses that have been defined by the U.S. Department of Health and Human Services as "covered entities":

• Individual and group health plans that provide or pay the cost of medical care
• Every health care provider, regardless of size, who electronically transmits health information in connection with claims, benefit eligibility inquiries, referral authorization requests, or certain other transactions
• Health care clearinghouses such as billing services, repricing companies, and community health management information systems

ROCs would seem to fall well outside of any of the categories of these "covered entities" and as such would not be bound by the HIPAA privacy rules.

In addition, as I advised the community's manager, the mere fact that a resident is allowed to have a pet doesn't necessarily mean that the pet is in the home for medical or health reasons.   I thus did not see how the existence of this list violated HIPAA's privacy rules.

However, I did remind the manager that if a member requested a list of all residents in the community that had pets and the association had in fact compiled such a list, the association would have to produce that list as required by Florida's statutes governing condominiums, cooperatives, or homeowners associations.  

If a community does have a list of homes with pets--especially if the community is a "no pet" or a pet restricted community--I suggest that the list remain with the manager and that it not be distributed to the board or other members in the community.   This will take pressure off of the board and eliminate the danger that a board member may be accused of violating a resident's privacy rights.  Even if that accusation proves to be unfounded, it's an added aggravation and may result in expenses to the association that could have been avoided.

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The Florida Manufactured Housing Association's annual convention is scheduled for October 7th and 8th at the Saddlebrook Resort in Wesley Chapel, Florida, which is just north of Tampa.

Our firm sponsors the welcome reception on the evening of October 7th. This reception is a great way to network with managers and board members from other resident owned manufactured housing ROCs as well as investor owned communities.

The schedule of events for October 8th promises a full day of information that should be very useful to every manufactured housing community.   Topics that will be covered include evictions, Fair Housing,  how to comply with the provisions of Florida's landlord-tenant laws for manufactured housing communities, and how to deal with vacant homes.  An "Ask the Lawyers" session is also scheduled and I know from experience that the attendees always find this session entertainng and well worthwhile.

The FMHA wants ROCs to take advantage of this great educational opportunity and I've offered to help spread the word about this exciting event.   You'll find the links to the information about the annual convention at the FMHA's website.  

I hope you'll consider attending the convention and look forward to seeing you there.

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The owner of a company that manages many ROCs throughout the state recently called and asked whether residents who wanted to be candidates for the ROC's Board of Directors had to first complete a "certification form."   My answer was "it  depends on whether the ROC is a condominium, cooperative, or subdivision."

While there are many similarities in the statutes that govern condominium, cooperative, and homeowners associations, there are also a some very important differences.   The "certification form" requirement is a prime example of one of these differences.

In 2008, Florida's legislators substantially revised portions of Chapter 718, which governs condominium associations.   Included in these revisions was an amendment to Section 718.112(2)(d)3 which now provides that:

• The "first notice of the date of the election" for the board of directors be accompanied by "a certification form" that is to be completed by a candidate for a position on the board of directors and that attests that the candidate "has read and understands, to the best of his or her ability, the governing documents of the association and the provisions" of Chapter 718 "and any applicable rules". 
• This signed "certification form" must be furnished by the candidate to the association by not less than 35 days prior to the election.
• The "certification form" is to be provided by the Division of Florida Condominiums, Timeshares, and Mobile Homes of Florida's Department of Business and Professional Regulation.

Inasmuch as (to the best of my knowledge) no candidate for Florida's legislature is required to sign a "certification form" attesting that he or she has "read and understands" our state's governing documents, one can be excused for wondering exactly what was going through the minds of our representatives in Tallahassee when this amendment was proposed and passed.

Currently, neither Chapter 719 (which governs cooperatives) nor Chapter 720 (which governs mandatory subdivision homeowners associations) contain a "certification form" requirement for board candidates.  Thus, any ROC that is not a condominium association and that does not have a "certification form" requirement in its governing documents need not provide these forms as part of its election materials nor would a member of one of these ROCs be required to sign that certification form to be eligible to run for the board.

However, rumor has it that our legislators have revisions to both Chapter 719 and Chapter 720 on the agenda for the 2010 legislative session and I'd be surprised if this 'certification form" was not part of the proposed amendments for both chapters.   Stay tuned for further developments.

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Today's edition of the Sarasota Herald-Tribune has a  very interesting article on how Charlotte County has recovered from Hurricane Charley, which made landfall in the Punta Gorda area as a small but very powerful category 4 hurricane five years ago today, on August 13, 2004. 

There are several manufactured housing communities mentioned in the story and, with one tropical depression and a very strong tropical wave churning off the coast of Africa, I thought this would be a good time to remind ROC residents that a slower than usual start to our annual hurricane season should not give rise to a false sense of security.    The traditional peak of the season is still one month away and as we all know, hurricanes that occur in "slow" seasons (such as Hurricane Andrew, which devastated portions of southeast Florida in late August of 1992) can be just as destructive as those that occur in "active" seasons.  

As always, ROC managers and board members should be aware of the need to prepare for an unwelcome visit from one of these tropical systems.

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Several ROCs have contacted me this summer about an increase in the number of residents that have not paid their monthly or quarterly rents or maintenance fees.   The effects of the economic crisis are now being felt in resident owned communities and there have even been several ROCs in Florida that have been forced to file for bankruptcy protection due in part to unpaid maintenance fees.

I often remind ROC board members that community associations are not banks.  ROCs that continually allow residents to pay rents, maintenance fees, or assessments after the due date function as a bank for those residents by giving those residents an interest free loan for the amount that's due--and each day that that loan remains unpaid puts greater economic pressure on the ROC and the residents that do pay on time.  

ROC managers know that the longer rent or maintenance fees remain unpaid, the greater the chance that the association will have to resort to legal action to attempt to collect the unpaid amounts--which will be growing with each missed payment.

I'd like to offer a few suggestions to help ROCs deal with this dilemma:

• Every ROC should have a policy for dealing with residents that fail to pay rents, maintenance fees or assessments on time.   Every resident should be made aware of the policy and board members should stress that the policy is necessary in order to allow the community to meet its financial obligations.
• This is not the time to "play favorites".  Unless there are extraordinary circumstances, all residents that are delinquent in payment of rent or maintenance fees should receive the same treatment.    For example, if the association's policy is to send a letter to any resident who is more than ten days late in making a payment, that letter should be sent to all residents that are ten days late, even those residents that have "always" paid in the past and "won't be a problem".
• ROCs should take immediate steps to put a resident on notice that he or she is delinquent in a payment.   Each of the statutes that provide remedies to ROCs when rents, maintenance fees, or assessments are not timely paid require certain written notices to be sent to the delinquent resident and the longer the association waits to send that first notice, the longer it will take for the ROC to be able to take the legal steps needed to help collect the unpaid amounts due.
• It's very important to find out as quickly as possible whether a lender has a secured interest in the home.   The ability of a community association to successfully recover amounts due and owing from a resident may be substantially impacted by the existence of a mortgage on or security interest in the lot, home or RV.   This determination should be made by the ROC manager or attorney prior to taking any legal action.  

Hopefully, we'll soon see better news on the economic front.    In any event, ROC managers and board members should continue to take the appropriate steps needed to protect the financial welfare of their communities.

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One of my blog readers recently emailed me and wanted to know whether Florida's "Sunshine Law" applies to meetings between less than a quorum of the members of the board of directors of an ROC.

Many members of resident owned communities incorrectly believe that the meetings of their ROC board or ROC committees are governed by Florida's "Sunshine Law," which can be found in Chapter 286 of the Florida Statutes.   It's clear from the provisions of this chapter, and in particular Section 286.011, that Florida's "Sunshine Law" only applies to meetings of boards or committees of state, county, or municipal agencies or other similar political subdivisions and not private enterprises.  In other words, only a very few ROCs (those that are agencies of state or local government--such as a community development district) are subject to Florida's "Sunshine Law".

Thus, in most situations, I see nothing wrong with a ROC President or other board member meeting with other board members as long as less than a quorum of the board is present during that meeting, even if the purpose of that meeting is to determine how the board members at that meeting are going to vote on a matter coming before the board in the future.   An effective President or board chairperson should already have a pretty good idea of how his or her board is going to vote on important matters before the board meeting and it's certainly logical that he or she contact the other board members in advance to find out how each member intends to vote and the reasons for that member's vote.

As long as there is less than a quorum of board members in the room where the meeting is occurring, even if ROC business is being discussed, there is no violation of the applicable provisions of Florida Statutes Chapters 718, 719, or 720.  I do want to remind ROC managers and board members that an illegal meeting occurs when a quorum of the board finds itself on the same conference call, receiving an email sent to them simultaneously, or in a "chat room" or other internet "meeting" area if that meeting was not properly noticed and made open to all members and does not fall within the limited exceptions that allow "closed" meetings.   The State's Department of Business and Professional Regulation will not take kindly to any such illegal meeting--even if it was held in "cyberspace".

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