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

My most recent entry summarized the some of the changes made by House Bill 1195 (which became effective on July 1 of this year) to several provisions of the laws governing cooperative associations in Florida.

House Bill 1195 created three new subsections to Florida Statute Section 719.303 that have the effect of extending to cooperative associations the same enforcement tools that have been given to condominium associations and mandatory homeowners associations in our state.

New Florida Statute Section 719.303(4) allows the association to suspend the right of a unit owner or that owner's occupant, licensee, or invitee to use common elements, common facilities, or any other association property until a monetary obligation is paid in full, subject to the following conditions:

• The unit owner must be more than 90 days delinquent in paying that monetary obligation
• The right to use limited common elements intended to be used only by that unit, common elements needed to access that unit, utility services provided to the unit, parking spaces, or elevators cannot be suspended under F.S. Section 719.303(4)

Cooperative associations are given the right to suspend the voting rights of a unit or member under  Florida Statute Section 719.303(5).   This new subsection provides that:

• The suspension is based on nonpayment of any monetary obligation due to the association which is more than 90 days delinquent
• A voting interest or consent right which has been suspended may not be counted towards the total number of voting interests for any purpose, including, but not limited to, the number of voting interests needed to establish a quorum, the number of voting interests required to conduct an election, or the number of voting interests needed to approve an action under Chapter 719 or the association's governing documents
• The suspension ends upon payment in full of all obligations currently due or overdue to the association

The suspensions imposed under these to new subsections are not subject to the notice and hearing requirements of F.S. Section 719.303(3).  Instead, the following requirements are provided in new Florida Statute Section 719.303(6):

• The suspensions must be approved by the association's board of directors at a properly noticed board meeting
• Upon approval, the association must notify the unit owner, and, if applicable, the unit's occupant, licensee, or invitee of the suspension by mail or hand delivery.

It will be interesting to see whether these new provisions encourage unit owners to pay amounts owed to cooperative associations.  I'll look forward to hearing from my blog followers that are members of cooperatives about this in the coming months.

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On June 21, Florida's Governor approved House Bill 1195.  The provisions contained in this legislation became effective on July 1, 2011.

HB 1195 was considered by many to be a "glitch bill" aimed a correcting oversights in laws passed in recent sessions of Florida's legislature.  However, HB 1195 does not expand the categories of "protected official records" in Florida Statute Section 719.104 to match those that were included in the 2010 amendments to F.S. Section 718.111(12)(c) and F.S. Section 720.303(5).   For whatever the reason, certain documents that are clearly "off limits" to unit owners in condominium associations and mandatory homeowners associations will continue to be accessible to a unit owner in a cooperative association that makes a proper request to inspect and copy them.  I've covered this topic in a previous entry in this blog and it's clear that cooperative associations have another year of uncertainty in dealing with requests to inspect and copy these "sensitive" official records.

However, HB 1195 did amend Florida Statute Section 719.303(3) to provide that::

• A cooperative association may now levy reasonable fines for the failure of the occupant of a unit (even if that occupant is not the unit owner) to comply with the association's "reasonable"  rules or any provision of the documents governing the cooperative.   The fine may not become a lien on the unit, may be levied on the basis of each day of a "continuing violation," and cannot exceed $100 per violation or $1000 total.
• In addition, a cooperative association can now suspend, for a reasonable period of time, the right of a unit owner, or unit owner's tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with the association's "reasonable" rules or any provision of the cooperative documents.
• The cooperative association must give the unit owner (and, if applicable, the unit owner's licensee or invitee) reasonable notice and an opportunity for a hearing before a committee of unit owners and the committee must agree with the fine or suspension in order for the fine or suspension to be imposed. 

We'll discuss some  additional enforcement tools extended to cooperative associations through HB 1195 in my next entry.

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I was contacted earlier today by a manager whose association had installed a "wifi" system in the community's clubhouse that would allow residents and their guests to bring their laptops and other mobile devices into the clubhouse and connect to the internet.   A password would be needed to use the wifi system but this password would be given to any resident or guest that requested it.

The manager forwarded me a very recent blog entry from my colleague, Lisa Magill, from the Becker Poliakoff law firm, that raised the issue of whether a community association could be  liable if the wifi connection offered to its residents and guests was used to illegally download content.   Lisa's entry contained links to several articles, including a report on litigation being filed against thousands of persons for allegedly downloading pornographic movies illegally.

Regular readers of this blog may recall my discussions of how ROCs could potentially violate copyright laws by playing music or showing movies at community events and it appears that associations that offer wifi or other internet services to residents and guests may be entering the same dangerous waters.

While the safest course of action would be for an association to remove the internet service (or not install it in the first place), perhaps there are some steps that ROCs can take to bring the risk of potential liability down to a level that might be acceptable to an association's board of directors:

• The board of directors can pass a rule requiring that any residents and guests using the community's internet service do not commit any illegal activities
• The board can also require that no resident or guest be given the password or otherwise be allowed to use the internet service unless and until he or she signs a document agreeing that he or she shall not use the system for any illegal purposes, including downloading any material illegally, and that any such illegal usage shall result in that resident or guest immediately and permanently forfeiting his or her privileges to use the internet service.   This agreement should also contain specific language stating that the resident or guest will indemnify the association for any and all costs, expenses, and damages that the association incurs or suffers as a result of that resident or guest using the service for any illegal purposes.  
• The board should determine whether the resident or guest is required to click on an "I Agree" box prior to accessing the internet on his or her laptop.  If so, the board can have the requirements and agreements set forth in above two paragraphs included on that "sign in" page and the resident or guest will not be allowed to access the internet unless and until he or she clicks on that box.   I would still suggest having each resident and guest sign a "hard copy" of that agreement for the association's records and the association should maintain that document in a safe place.

Finally, each association should have a discussion with its insurer to determine whether the association's current policy would protect it in the event of a claim arising from the illegal use of its internet service by a resident or guest. 

We'll do our best to keep you advised of any further developments in this area.  

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I'm posting the links to three recent articles for my blog readers:

• The first story involves the efforts of a condominium association in Jupiter, Florida to use a dog's individual DNA to help identify canine offenders (and their owners) of the community's "pooper scooper" rules.
•  The aggressive approach taken by a  homeowners' association in Pembroke Pines to collect delinquent maintenance and other fees--brought about in no small part by the foreclosure crisis--is the focus of the second article.
• Finally, a very sobering report from the Palm Beach Post on the battle brewing between Florida's emergency managers and the Federal Emergency Management Agency as to whether every emergency shelter in the state is required to be in compliance with the Americans with Disabilities Act.   According to this article, the cost to bring each of the hundreds of emergency shelters in Florida into compliance with the ADA may exceed One Billion Dollars--and the last time I checked, our state doesn't have that kind of money in its cookie jar.

I hope you enjoy reading these three stories and look forward to your comments.

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I have to assume that most of us that remain in Florida during the "off season" were not obsessed with the Casey Anthony trial.  

Nonetheless, almost immediately after the verdict, the social media (characterized by numerous comments on my Facebook page) was buzzing with outrage.   The mainstream media (which certainly contributed to the almost surreal and sensationalistic circus atmosphere that has surrounded this case for almost three years) quickly marched out its various "experts" to weigh in on the jury's decision and presented numerous "persons in the street" opinions for public consumption.

Almost lost among the emotional chatter are a few very important points that form the basis of our country's criminal justice system:

• A defendant is innocent until proven guilty.  The defendant walks into the courtroom with a presumption that she did not commit the crimes with which she is charged. 
• The State (represented by the prosecution) must establish the defendant's guilt and must do so "beyond a reasonable doubt".  This "burden of proof" is a very heavy burden--to use a sports analogy, the prosecution has to do much more than just carry the football across the 50 yard-line--that football has to get at least into the range of a "chip shot" field goal and the prosecution most probably has to put itself into a "1st and goal" position to meet that extremely high standard.
• In addition, the fact that the defendant chooses not to testify at the trial on her behalf cannot be held against her by the jury in its deliberations.  Because the defendant is presumed innocent and the State has the burden of proving her guilty beyond a reasonable doubt, the defendant need not present any evidence at all if she (or her defense team) so chooses.

It's a credit to our legal system that criminal defendants are tried before a jury of their peers rather than in the "court of public opinion".   When all was said and done, Casey Anthony's fate rested in the hands of twelve individuals who were able to focus on the testimony and other evidence presented and were not subjected to the ceaseless barrage of opinion and speculation from every corner of the internet and mainstream media.

In the long run,  those jurors (and the alternate jurors) are the only "heroes" in this saga.  Regardless of what any of believe or think we "know" about the Anthony family and what really happened to Caylee Anthony, those jurors gave up several months of their lives for minimal compensation and undertook one of the most trying and important responsibilities that all American citizens share--and it was these twelve jurors, and not any "expert," or majority vote from the public at large, that decided whether the State had met its burden of proof on each of the various charges.  

Those of my blog readers that have served on a jury have an idea of the difficulties these jurors faced in making their determinations.   Each of these individuals deserves our gratitude for their commitment to our state and our criminal justice system.

We'll get back to ROC matters in my next blog entry.

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