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

I was contacted by a board member of a resident owned cooperative earlier this month with a rather interesting situation.  One of the unit owners was videotaping the board meetings and now wanted to broadcast those videotapes on the "in house" channel that served the community.   Was the association's board required to allow the unit owner to broadcast these videotapes?

The statutes governing condominium, cooperative, and mandatory homeowners associations provide that a member is entitled to videotape board meetings.  For example, Florida Statute Section 719.106(1)(c) provides in part that "any unit owner may tape record or videotape meetings of the board of administration."

However, the right to record or videotape does not create a right to broadcast that tape recording or videotape and there is clearly nothing in any of the applicable statutes or Florida Administrative Code sections that requires the association to allow an association member to broadcast the videotape or recording on the association's "in house" channel.  

Here are a few reasons why I suggest that a resident owned community not broadcast board meetings (either live or by video or audio replay) on the community's "in house" channel:

• Many board members and unit owners may feel inhibited by the knowledge that their every word and action at the meeting will be broadcast throughout the community.  Some people simply don't feel comfortable speaking or otherwise participating when they are being videotaped.
• There's a real danger that board meetings--where the business of the association is supposed to be conducted--will become "media events" or "performances".  While CSPAN certainly has helped open the doors to the workings of our Federal government and the meetings of many governmental boards and agencies are televised, community associations are a different animal--ROC board members are volunteers and Florida's 'government in the sunshine" law doesn't apply.  I'd suggest that many unit owners in a resident owned community would be less willing to serve on the ROC board knowing that the board meetings would be broadcast on the "in house" channel.
• Unless there is very controversial item on the agenda, many, if not most, unit owners simply don't attend board meetings.  Unit owner participation is both encouraged by Florida's statutes and important to the overall health of resident owned communities and my suspicion is that even fewer unit owners will attend board meetings in person if these meetings are broadcast.

I'm also concerned that the taping won't accurately reflect the meeting--perhaps the video or audio quality won't be sufficient, or perhaps the person taping the meeting will alter the tape for innocent (or not so innocent) reasons. 

And if the association decides to supervise the taping and broadcasting of the meetings, wouldn't that tape now become an "official record" of the association?  Does the association really want to be responsible for safeguarding these tapes as "official records" and producing them in response to a unit owner's record inspection request?

Obviously, if a unit owner wants to make a video or audio tape of a board meeting available to the other members of a ROC he or she can certainly do so--but I'd suggest that an association and its board is better served by not allowing those tapes to be part of the programming on the association's "in house" channel.

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I know everyone is busy preparing for the holidays but I wanted to post our January seminar schedule:

• Tuesday, January 11, at Spring Creek Village in Bonita Springs
• Monday, January 24,  at Venice Isle Estates in Venice.
• Wednesday, January 26, at Skyway Village in Palmetto

All of these seminars will start at 10 a.m. and will end between noon and 12:30 p.m. 

We'll be discussing requirements and procedures for properly and efficiently conducting meetings, issues involving swimming pools, and any proposed legislation making its way to Tallahassee for the 2011 lawmaking session that may impact resident owned communities in our state.

We'll conclude with our traditional "open forum" for questions and suggestions for future seminar topics.

As always, admission is free, refreshments will be served, and you'll have a great opportunity to mix and mingle with members of other ROCs in your area.

Please email Karen Midlam (kmidlam@lutzbobo.com), Kathy Sawdo (ksawdo@lutzbobo.com) or me (sgordon@lutzbobo.com) if you'd like to attend one of these events.  Just let us know which seminar and the number of residents from your community that will be attending.

I'll also be speaking at the Mid-Florida ROC meeting at Hawthorne  in Leesburg on the morning of Tuesday, January 25.

Our best wishes to you and yours for a very happy and healthy holiday season.   We're looking forward to seeing you in January!

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We just finished a busy two week stretch of very well attended seminars.   Thanks to our friends at Paradise Bay Estates in Bradenton, Imperial Bonita Estates in Bonita Springs, Village at Riverwalk in North Port, and Hammock Estates in Sebring for hosting those events.

One of the topics we discussed involved how to balance the rights of a member of a resident owned community to inspect and copy the association's "official records" with the rights of each resident of the community to have certain information remain confidential and protected.

I wanted to highlight several important points made during my presentation on this topic:

• Almost any document currently located in the association's offices falls within the definition of an "official record" under the Florida Statutes governing condominium, cooperative, and mandatory homeowners' associations.
• However, certain documents that are "official' records are nonetheless protected or :"exempt" and even if a member requests to inspect those documents the association shall not allow that member access to those records. 
• Florida's legislators recently amended the statutes governing condominium and mandatory homeowners' associations and added several new categories of these protected or "exempt" documents.   However, the legislators failed to amend the statute governing cooperative associations and, as a result, a member of a cooperative association may still be entitled to inspect personnel records as well as obtain information about other residents--such as email addresses, telephone and fax numbers, and northern addresses--that are now clearly "off limits" to members of condominium associations or mandatory homeowners associations.
• All managers and board members should remember that a member cannot simply show up in the office one day and demand that he immediately be allowed to inspect one or more of the association's "official records".  There is a specific procedure that is to be followed under Florida's statutes and all members should be required to follow those procedures.

We always suggest that any request to inspect an association's "official records" be immediately forwarded to the association's attorney.  The attorney can help the association properly evaluate and respond to request and assist in ensuring that the association complies with Florida's statutory requirements while not violating its members' privacy rights.

The dates, locations and topics for our January seminars will be announced within the next week.  Stay tuned and try to keep warm!

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Now that the annual migration of the "snowbirds" to our resident owned communities is well under way, so are the number of complaints we receive each week about  "nuisances".   Whether it's the dog that barks at all hours of the day and night, the next door neighbor who plays his stereo loudly, or the "shady" character across the street who insists on hosting "wild" parties with the "wrong" crowd every night, I can assure you that every ROC has at one time or another dealt with behavior that at least some of its residents believe is a "nuisance."

There have been some recent decisions from the arbitrators at the Department of Business and Professional Regulation's Division of Condominiums, Timeshares, and Mobile Homes on the subject.

Here's a summary of some of those decisions:

• A Summary Final Order by an arbitrator in November of 2008 provides that proof of a "nuisance" requires evidence of repeated behavior which interferes with a protected legal right in a substantial, appreciable, and tangible way.  Nuisance is not established by evidence limited to two isolated incidents of subjective reactions to the operation of a Segway on the community's common elements.
• Last December, an arbitrator found that a single incident of yelling at board members did not, as a matter of law, constitute a "nuisance".
• No "nuisance" was found in a January, 2009 decision that involved an allegation of a single instance of a drunken brawl in the ROC's jacuzzi involving tenants of the unit owner. 
• In August of 2009, an arbitrator determined an arbitration petition that only alleged a single incidence of yelling and drunkenness was not sufficient to establish a "nuisance."
• However, an arbitrator's order entered in September of 2009 found that where a unit owner was alleged to have removed extensive portions of the common element drywall in his condominium unit, which made it much easier for cigarette smoke to pass from his unit into adjoining units, that unit owner was ordered to restore all of the drywall in his unit and to cease smoking in the unit until the required drywall was restored.
• Finally, an arbitrator's decision in January of 2009 required a unit owner to remove pit bulls exceeding 20 pounds from her unit.  The ROC's declaration of condominium permitted pets weighing less than 20 pounds and prohibited nuisances or practices that were a source of annoyance to the residents or interfered with other unit owners' peaceful possession of their units.  One of the pit bulls had already bitten a resident and the unit owner had demonstrated that she would continue to flout the requirements of the declaration without an order from the arbitrator requiring compliance.

Thanks to my colleague, Karl Scheuerman, for compiling a very comprehensive summary of the DBPR'S arbitration decisions.

Paradise Bay and Imperial Bonita Estates did a fine job of hosting last week's seminars and we're looking forward to this week's seminars at Village at Riverwalk in North Port and Hammock Estates in Sebring. 

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