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

Those of you that attended our recent ROC seminars at the Molokai community in Leesburg and Sandalwood Park in Venice know that the Federal Trade Commission has delayed the implementation of the "Red Flag" Identity Protection Rules until June 1, 2010.  I briefly summarized my understanding of these rules and how they may impact resident owned communities at those two seminars and will present the same summary at our upcoming seminars at Old Bridge Village in Fort Myers and Westwinds Village in Bradenton.

The Community Associations Institute recently published an article that may help ROC managers and board members determine whether their association will have to comply with the "Red Flag" rules and, if so, the type of identity protection program the association will have to adopt and maintain.

A number of factors will have to be considered, including:

• Whether the association is a "creditor" because it accepts installment payments of maintenance fees or assessments (while this does not seem to include rent payments, a cooperative association that finances residents' purchases of membership shares would appear to be a "creditor")
• Whether there is a risk of identity theft as measured by factors, including the volume of identity-related information that is received by the association and the number of association employees and board members that review that information

The CAI's article provides an outline of a basic identity protection program that associations might want to consider.   The association should consult with its attorney to help prepare and implement the community's identity protection plan.

A great deal of uncertainty still surrounds the "Red Flag" rules and I would not be surprised if the FTC decides to delay the implementation of these rules again as the June 1 deadline approaches.  However, managers and board members should strive to protect the privacy of every resident in their communities.  Please remember that the association's attorney should be consulted whenever a question involving a request to provide a resident's "private" information arises as the provisions of the Florida Statutes governing condominium associations, cooperative associations, and homeowners' associations may require the production of information that a resident, board member, or manager considers to be "private".

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The managers and board members in the communities we work with have been faced with some rather interesting situations during the past few months.   Here's a sampling--see if you can guess what they have in common:

• A ROC manager receives a frantic call from one of the residents in her community about  another resident who wandering up and down one of the streets in the community waving a machete.   
• A board member wants to stop cars that she feels are speeding in her community and tell the drivers that they are violating the rules and regulations in her community.
• Another community is about to begin a substantial renovation of its clubhouse and one of its board members would like to be appointed as the "project supervisor" to oversee the general contractor and all of the work.
• Several board members in another community are convinced that a resident requesting to have a pet reside with her as a "reasonable accommodation" for her disability is not disabled and have stated that they will vote against granting the resident's request even if she provides the board with a statement from her treating physician verifying the disability and the need for the accommodation.

In each of these situations, ROC managers or Board members are being asked to or are volunteering to step well outside the scope of their  "job descriptions".   Neither  managers nor board members have the training nor should they attempt to disarm someone waving a machete, as that situation clearly calls for the local law enforcement authorities.   Likewise, even if a board member can be certain that someone is exceeding the speed limit in the community, the  appropriate action is to positively identify the vehicle and report the incident to the manager or, in certain circumstances, the police or sheriff's department.

While it's common for the community manager and one or more residents that have been appointed by the board to serve in an advisory capacity or as a "go between" with the general contractor and other professionals involved in a major community project, even if a board member has the qualifications (including any required licenses) to supervise the project, why would the association want to put itself in the position of being a defendant in a lawsuit filed as a result of damage or injury that occurs as a result of defective workmanship?    I have no doubt that the association would be sued on the grounds that one of its board members was supervising the project but I do have doubts that the association's insurance would protect the association in this situation--precisely because the association allowed its board member to act outside of a board member's "job description".  Also, what if the association is unhappy with the board member's performance as the supervisor--how comfortable will be other board members and the other residents in the community be if the board has to terminate their fellow board member's employment?

Finally, numerous court decisions involving Fair Housing Laws make it very clear that allowing board members to "play doctor" and substitute their judgment for that of trained health care professionals is a prescription for disaster.  While the association's board is entitled to request documentation to establish the basis for a resident's request for a "reasonable accommodation," once that documentation has been presented, a failure to make that "reasonable accommodation" may have serious and adverse financial implications for the community. 

ROC managers and board members have more than enough work within their "job descriptions" to keep them busy.   The community that allows or encourages its manager or board members to step outside of those "job descriptions" does so at its own peril.

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Yesterday's "Sarasota Herald Tribune" featured a column by Tom Lyons about a dispute between the board of a condominium association and one of its residents.   As I read the article (which was headlined "Condo flag fight needs a little common sense") I wondered whether this association's directors had considered the negative publicity resulting from their decision to require the resident to remove five or six small flags that she had arranged in a circle around a tree located on the common area outside of her unit on the Sunday before Veterans Day.   The question as to whether the association was correctly interpreting Florida Statute Section 718.113 and its own governing documents seemed rather unimportant when compared with the desire of this resident to demonstrate her patriotism during the week of Veterans' Day--especially since, according to Mr. Lyons' column, the resident was the mother to two sons and daughters-in-law who were currently serving in the Navy and had lost two friends who died while serving in Vietnam.

Later that morning I spoke with a board member from one of the ROCs we represent.     She had just received a rather unique request from a couple that wanted to spend a month in the  recreational vehicle park operated by the association.   The rules governing the RV park and the rest of the community prohibited pets and the couple was aware of this because they had friends that lived in the park.   This couple trained guide dogs and they wanted to know whether the Board of Directors would make an exception to the "no pet" rules and allow them to bring the dog they were currently training with them during their stay.   While there were certainly other nearby locations where the couple could stay with the dog, both they and their friends hoped that the Board could grant their request.  

As we discussed this situation, it was clear that this board member had already read Florida Statute Section 413.08 which gives persons with disabilities rights to be accompanied by a "service animal" in "all areas of a pubic accommodation" that "the public" would normally be permitted to occupy.   However, the board member advised that the couple was not claiming that either of them had a disability nor could the dog they were training fit into the definition of a "service animal" at the time that the dog would be brought into the park.  How would I suggest that the board respond to the request?

I suggested that the board should weigh a number of factors, including the following::

• While it did not appear that the board was required to grant the couple's request under either state or federal Fair Housing Laws or Disability Laws, the board did, as always, have the authority to grant exceptions to the community's "no pet" rules.
• The couple would be staying in the park for a relatively short period of time (30 days).
• The fact situation presented to the Board was certainly uncommon--how often would someone request an exception to the pet restrictions on grounds that the pet was being trained to be a service animal or guide dog?
• The couple had presented the board member with documentation that sufficiently established that they were in fact qualified guide dog trainers and were training the dog for that purpose.
• The couple had friends in the community and those friends and the other residents in the park would have the opportunity to learn about the work involved in training guide dogs and how these dogs help persons deal with their disabilities.

In short, I suggested that while I didn't believe that the Board was required to make an exception to the community's "no pet" rules, the Board could certainly justify an exception under these circumstances if it chose to do so.  I was most impressed by the efforts clearly being made by this community's board of directors to weigh all sides of the issue before making a hasty decision.  I sensed that the members of this community's board would apply common sense and compassion in its decision-making process and hope that all ROC boards follow this board's example.

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The Florida Legislature substantially revised several sections of our state's Condominium Act last year.   One of the important revisions focused on the length of time a unit owner could serve as a board member without seeking re-election.   Effective October 1, 2008, the terms of all members serving on condominium association boards were considered to expire at the next annual meeting unless the majority of the unit owners approved an amendment to the association's bylaws (or confirmed an existing bylaw provision) that would provide for "staggered" two year terms.   This revision to Florida Statute Section 718.112(2)(d)1, was accompanied by the rather curious statutory amendment found in F.S. Section 718.112((2)(d)3 which required that any candidate for a board position sign a "certification form" attesting that he or she had read and understood, to the best of his or her ability, the association's governing documents, the provisions of F.S. Chapter 718 and any "applicable rules".

Needless to say, these amendments created quite a stir among board members and managers in resident owned communities.   I received more than my share of calls and emails from ROC board members and managers asking whether their particular communities were subject to these new revisions.

At least for the immediate future, the answer to whether a particular ROC is subject to these  restrictions on the length of terms for its board members and the certification form requirement turns on whether that ROC's community association is a condominium association as opposed to a cooperative association, mandatory homeowners association or some other type of corporation:

• Condominium Associations fall within Florida Statute 718 and must comply with the statutory revisions to Section 718.112 governing the length of terms for board members and the certification form.
• Cooperative Associations are primarily governed by Florida Statute Chapter 719.   For the most part, Chapter 719 remained unchanged during the 2008 and 2009 Florida legislative sessions and for now residents of ROCs that are cooperatives continue to have the ability to decide for themselves the length of terms for board members and do not have to sign certification forms in order to run for positions of their boards.
• Florida Statute Chapter 720, which governs mandatory homeowners associations, also survived the 2008 and 2009 sessions of the Florida Legislature with no term length restrictions and no certification form requirement.

However, the 2010 legislative session looms in the not so distant future and I fully expect that attempts will be made to bring greater uniformity to the statutes governing the various types of community associations.  I'm not certain what will happen with the certification requirement but I won't be surprised if both cooperatives and mandatory homeowners associations find themselves subject to some sort of restrictions on term lengths by this time next year.   I'll keep you posted.

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Given my most recent entry about the difficult decisions that ROC boards are facing due to the struggling state of our economy, I hope you'll find this article about the Red Hat Society that I read in  today's Sarasota Herald-Tribune interesting.   It seems all of my visits to the communities we represent coincide with some Red Hat Society event and I have a feeling that many readers of my blog may already know about the debate over whether dues should be charged to every "Red Hatter".  

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