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

Florida's Republican primary is just a few days away and many, if not most, of the community associations in our state are in the midst of their own ROC board elections.

What better time to remind unit owners in condominiums and cooperatives about the procedures that must be followed if the association wishes to verify information on the outer envelope (which contains the inner envelope in which the completed ballot has been placed).

Florida Administrative Code Section 61B-23.0021(10)(b) describes the process for condominium associations and FAC Section 61B-75.005(10)(b) details the process for cooperative associations.  These sections provide that an association that wishes to verify outer envelope information in advance of the annual meeting may do so as follows:

• The board designates a committee that does NOT include current board members, officers, candidates for the board in this election, or the spouses of any of these persons--this is defined as being "impartial" in these two FAC sections
• This impartial committee may then hold a meeting to verify the outer envelope information.
• This meeting must be noticed in the same manner as board meetings and must be open to all unit owners

At the meeting of this impartial committee, the signature and unit identification on the outer envelope must be checked against the list of qualified voters and the voters shall be checked off on the list as having voted.  

Any exterior envelope not signed by the eligible voter shall be marked "Disregarded" or with "words of similar import," and any ballots contained in those disregarded envelopes shall NOT be counted.

A few more very important points:

Neither the inner nor the outer envelopes can be opened until the "polls are closed" and no more ballots are being accepted.

The outer envelope must be signed by the eligible voter--simply sticking an address label with the eligible voter's name on the outer envelope--without some evidence of that eligible voter's signature--is NOT sufficient

Finally, and perhaps most important, any meeting of the impartial committee to verify the outer envelope information MUST be held on the day of the election.   ROCs that allow this committee to verify these outer envelopes prior to the day of the election are violating Florida law.

I assume that the drafters of these FAC sections realized that not allowing the impartial committee to meet until the day of the election would result in some very long annual meetings--and I've had the pleasure of serving as the "entertainment" at many resident owned communities while the envelopes were being opened and the ballots counted!

Our next four weeks will be very busy with annual meetings and seminars in Bradenton, Lake Placid, Bonita Springs, and Venice.   We hope to see you at one of those seminars--please contact Karen (kmidlam@lutzbobo.com) or Kathy (ksawdo@lutzbobo.com) if you haven't already rsvp'd and want to attend one of those events.

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Based on the responses I've received from my recent blog entries and presentations on  fines and suspensions of use rights, it's clear that these topics are "hot issues" in resident owned communities throughout Florida.

Although the Florida Statutes governing condominium, cooperative and mandatory homeowners associations all recognize an association's power to fine or suspend use rights of unit owners or parcel owners (or their tenants or guests), I'd suggest ROCs consider the costs and benefits of instituting these procedures.   Board members in community associations should weigh numerous factors when considering whether to use fines and suspensions, including the following:

Do the association's members want to give any of their neighbors the power to fine them or suspend their rights to use the common facilities?  I've been in several communities where the membership has clearly and convincingly expressed the concern that a member may be fined solely because of a grudge or other "agenda" of one of his or her neighbors that happens to serve on that fining or suspension committee.    Regardless of the type of safeguards that an association tries to build into its rules or policies governing the operation of that committee, many residents simply don't want to give any of their neighbors the power to assess fines against them that may reach $1000.

And what about the homeowners in a resident owned manufactured housing cooperative or condominium that are not shareholders in the cooperative or condominium association?   Those homeowners are not "unit owners" under Chapter 718 or 719 of the Florida Statutes and are thus not governed by the fining and suspension provisions of those Chapters.   Their responsibilities are governed by Chapter 723 of the Florida Statutes and the rental prospectus.  It's doubtful that many rental prospectuses allow the park owner (in this case, the cooperative or condominium association) to fine a non-shareholder homeowner or suspend his or her use rights--and even more doubtful that any such provision in a rental prospectus would be deemed legal and enforceable under current Florida law.    How does an association's board of directors justify a situation where the non-shareholders (who are not subject to fines or suspension of use rights) are treated more favorably than the shareholders?    I can certainly see that situation creating a great deal of controversy and making it more difficult for the association to market and sell membership shares in the cooperative, or units in the condominium, to prospective purchasers.

Those are just two points to consider when deciding if a community should institute or maintain a fining and/or suspension procedure.

Remember--just because a community is allowed to have a fining and suspension committee doesn't mean that the community must have one.

Finally, for those long time followers that recall my entries on the "music police," here's a link to a story that appeared this week in the Sarasota Herald-Tribune on a federal lawsuit filed by our friends at Broadcast Music Inc. against a tavern in the Manatee county community of Ellenton. 

And on that cheery note, my best wishes to everyone for a very happy and healthy holiday season!

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We've got a very busy five or six weeks ahead of us with several chances for managers and board members in resident owned communities to hear from us:

• I'll be speaking about fines and suspending privileges as well as pet issues at the Mid-Florida ROC meeting at the Molokai community in Leesburg on Tuesday morning, November 29th.

Bill Korp and I will be making presentations on elections, budgets, and a number of other topics at our upcoming ROC "roundtables":

• Thursday, December 1, at Horizon Village in N. Fort Myers
• Thursday, December 8, at Venice Isle Estates in Venice
• Thursday, December 15, at Westwinds in Bradenton

Our "roundtables" begin at 10 A.M. and end between noon and 12:30.  These events are great for board members that want to learn and also network with residents from other communities.  Refreshments are served and there's no charge.   If you're interested in attending and haven't already rsvp'd, please email either Kathy Sawdo (ksawdo@lutzbobo.com) or Karen Midlam (kmidlam@lutzbobo.com).  Just let either of them know which one of these "roundtables" you'll be attending, how many will be attending from your community, and whether you'll need directions to the host community.

I'll also be speaking at Tamiami Village in North Fort Myers on the morning of December 21 for the monthly meeting of SWFROC and will be presenting a seminar on the procedures and requirements for the election of directors in ROCs after the January 4 breakfast meeting of the West Florida chapter of the Community Associations Institute.

I hope to see you at one or more of these events.

Have a happy and relaxing Thanksgiving surrounded by friends and family.   Go Gators and Go Blue!

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Every ROC has at least one "gadfly"--that owner who has decided, for whatever reason, to devote every waking minute to creating as much misery as possible for the manager, the board, and the other members of the community.   We consider a community lucky if it's home to only one of these cantankerous creatures.

What happens when that "gadfly" decides to run for the community association's board of directors?

Let's assume that this"gadfly" is a unit owner in a condominium or cooperative association.   He (or she) meets all of the statutory qualifications (and there are more conditions for candidates for the board in condominiums than there are in cooperatives) and gives the association written notice of the intention to be a candidate at least 40 days before the election.

Our "gadfly" then begins campaigning by going door to door, handing out flyers, making phone calls and sending all kinds of political advertisements to other unit owners by mail and email. 

In addition, the "candidate information sheet" that the "gadfly" submits to the association not less than 35 days before the election doesn't contain any information about the "gadfly's" background, education, and qualifications.  Instead, the "gadfly" has filled the entire 8 1/2 inch by 11 inch sheet with factually incorrect statements about the current board members, false accusations against the community's manager, and campaign promises that the "gadfly" clearly will not be able to keep even if he or she is elected. 

Can the association prevent the "gadfly" from campaigning?

• There are no provisions in the Florida Statutes or Florida Administrative Code sections governing the election process in condominium or cooperative  associations that prevent a candidate from campaigning.   Assuming that the gadfly has not improperly obtained the email addresses and phone numbers of the other unit owners, the association is well advised to simply allow the gadfly to campaign.

Can the association edit the "gadfly's" candidate information sheet or tell the "gadfly" that the information sheet won't be included in the election materials unless the "gadfly" submits a revised sheet that contains only the "gadfly's" background, education, and qualifications?

• The Florida Administrative Code Sections governing these information sheets in both condominium and cooperative association elections are clear that these sheets may describe the candidate's background, education, and qualifications as well as other factors deemed relevant by the candidate.
• In addition, Florida's statutes provide that condominium associations and cooperative associations are not liable for the contents of the information sheets provided by the candidates.
• Finally, the Election Brochures developed by Florida's Division of Condominiums, Timeshares, and Mobile Homes for both condominium and cooperative associations caution that "an association may not edit, alter, or otherwise modify the content of the information sheet".

In other words, ROC managers and board members have to assume that the "gadfly's" fellow unit owners will approach the election of the association's board members in an intelligent and responsible fashion--regardless of the outcome of that election. 

We've got several seminars and presentations scheduled for late November and the month of December and I'll post that information in my next entry.

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As many of my readers know, while my wife and children graduated from the University of Florida, I graduated from the University of Michigan and received my law degree from Ohio State.   I was born and raised on Big Ten football and bleed maize and blue (to the dismay of my Buckeye friends and family).

Penn State joined the Big Ten about twenty years ago and there have been many memorable games between the Nittany Lions and my beloved Wolverines--while the players changed, and other coaches left the profession, Joe Paterno remained as the symbol of Penn State.  In many ways, he was regarded as the shining example of all that was and is good about big-time college athletics.

I spent part of last night reading (with shock and outrage) all 23 pages of the grand jury report that resulted in the charges against Jerry Sandusky, a former defensive coordinator under Paterno at Penn State, as well as  the university's athletic director and the school's vice president for finance and business.   I will not post the link to that report as it is both graphic and horrifying in detailing how Sandusky allegedly abused at least 8 young boys and how Penn State's administrators allegedly allowed this abuse to occur.

Earlier this afternoon, Joe Paterno issued a statement that he would be retiring at the end of this football season.

My partner, Jody Gabel, and I, find ourselves more and more frequently helping communities struggle with the very real concerns raised by sexual offenders or predators. It's certainly understandable that many residents feel threatened when they discover that there is a sexual offender or predator in their midst.

Here are a few thoughts and suggestions that may be helpful:

• Screening of prospective residents is absolutely essential.  The best way to deal with a sexual predator is before he or she becomes a resident in the community.  I advise ROCs we represent  to screen any person that intends on occupying a home in the community for any period of time greater than one month.   Once the predator or sexual offender moves into the community, the amount of time, effort, and expense involved in trying to remove him or her will be substantial, and there's no guarantee that the offender or predator will be required to move.   We also suggest that our clients use a professional screening company for all residency applications--there are a number of very good companies that focus on this very important task.
• While a community may have to allow a resident to have a caregiver as a "reasonable accommodation" under the Fair Housing Act, the community should insist that the proposed caregiver undergo screening.   The last thing a ROC manager or board wants to deal with is a "caregiver" who is a convicted sexual predator.

When it's discovered that a person who already lives in the community has a record of being either a sexual predator or sexual offender, a number of factors must be considered:

Did the offender/predator lie or withhold information on the application for residency?

Did the offender/predator become a resident before the community's rules (if any) requiring screening and/or approval of the association to the residency went into effect?

Was the resident convicted of the offense after he or she moved into the community?

How long ago did the offense occur and what's the nature of the offense?   There's certainly a difference between a resident who was convicted 40 years ago (when he was 19)  of having improper relations (and thus may be a registered offender) with his 17 year old girl friend (who happens to be his wife of 39 years) and the 56 year old resident who has been convicted of being a sexual predator on several occasions in the last decade.

I have always advised against posting information about a resident's real or alleged record as a sexual offender or predator.   Errors can be made and neither the residents in the community nor the association itself is well served by spreading information that turns out to be misleading or false.   The better course of action is to simply post a notice in the community clubhouse or other public area advising that anyone that wishes to determine whether any registered sexual predators or offenders live in or near the community can do so by visiting Florida's Sexual Offenders and Predators  Website.

And, as always, when in doubt, contact legal counsel.  These are extremely difficult issues and the association's attorney can help the community navigate these very troubled waters.

I'm updating this entry while watching the press conference conducted by a member of Penn State's Board of Trustees where Joe Paterno's firing has just been announced.   What a nightmarish end to his tenure and a unfathomable taint on his legacy.

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The very successful and well attended 2nd Annual Dowd, Whitaker & Associates Community  Festival was held in Venice earlier this week.   I was pleased to be one of the presenters at the Festival and had the opportunity to speak to an impressive number of members and managers of resident owned cooperatives throughout southwest Florida.

I covered a number of topics during my presentation but the one that generated the most discussion involved Florida Statute Section 719.303 and in particular the provisions relating to fines and suspension of  use rights for failure to comply with the cooperative documents or the association's reasonable rules.

Here are a few important pieces of information from that presentation:

1.   The authorization to assess fines or suspend use rights or voting rights does not need to be included in the community's governing documents.

2.   Fines cannot exceed $100 per violation or $1000 total but a fine may be assessed on the basis of each day of a continuing violation.

3.   Fines may not become a lien on a unit under this statute.

4.   Fines may not be assessed and use rights may not be suspended unless the unit owner (or, if applicable, the unit's licensee or invitee) is provided with reasonable notice and the opportunity for a hearing before a committee of other unit owners.   If the committee does not agree with the fine or suspension, the fine or suspension can not be imposed.   I do not see any provision in the statute that prevents board members from serving on this committee.

5.     Even if the association's bylaws specifically permit closed committee meetings pursuant to Florida Statute Section 719.106(1)(c), I'd suggest that the safer course of action may be to keep these hearings open to the general members--since the statute clearly provides that the committee's decision not to impose a fine or suspension prevents the board and the association from imposing the fine or suspension, I'm concerned that this committee may be held to "take final action on behalf of the board" and thus not be allowed to hold its hearings behind closed doors.  

The association can also suspend voting and use rights where a member is more than 90 days delinquent in paying any monetary obligation owed to the association.   There's no need for a hearing in these situations and I'll go into further detail in my next blog entry.

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Since we've just recently observed Labor Day and President Obama's "Jobs Plan" continues to make headlines, I thought I'd discuss three situations involving ROC employees that are all too common and can create some major problems for resident owned communities:

• Quite often,one or more of the association's employees is performing work "on the side" for residents in the community.   Even if the employee is truly doing this private work "after hours," what happens if the employee injures himself or others, or is accused of stealing from one of those residents, or does a lousy job and causes damage to the resident's home. What if the employee has used the association's tools or equipment (or one of the association's vehicles) while doing this "off the clock" work?  Allowing an employee to perform work "on the side" for residents in the community creates an absolute "no win" situation for the association--the association receives no benefit whatsoever from allowing its employees to perform "after hours" work for residents in the community and at the same time subjects itself to all types of potential liability that may or may not be covered by the association's insurer.  A resident who suffers property damage or injury because of the actions of the association's employee will be looking for a "deep pocket"--and I can almost guarantee my blog readers that the employee's pocket is not nearly as "deep" as the association's.
• It's never easy to discipline or terminate an employee.   When that employee is a resident in the community, what is already difficult becomes much more so--and runs the risk of dividing the community.   In many of these situations, the terminated employee (as well as his family, friends and neighbors) will spend a good deal of time and energy attempting to discredit the board of directors and the manager in an attempt to regain his job.   The fact that the employee was unable or unwilling to fulfill his job responsibilities is almost always overlooked in the emotional frenzy that infects the community.
• Do I even need to explain why allowing a member of the association's board of directors to be employed by the community is a prescription for potential turmoil and additional levels of association liability?   I doubt that any ROC board member would feel comfortable voting to terminate the person in charge of (for example) maintenance for the community-- and who also happened to be the association's President or another board member.

Just a few things to keep in mind as we'll be in our busy season before we know it!

Enjoy these first few weeks of college football.  As a Michigan alum, I sure am!

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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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House Bill 1195  made its way through the Florida legislature and was presented to our Governor on June 13.  It appears that our Governor will sign the bill--although nothing is certain nowadays--and  the provisions contained in HB 1195 that amend various sections of Chapters 718, 719, and 720 of the Florida Statutes will become effective on July 1, 2011.

There's a very curious amendment to F.S. Section 720.303 that will impact the ability of ROC board members and managers to control the behavior of members attending board meetings.

We all know that unit owners are entitled to attend almost all board meetings of a condominium or cooperative association and are entitled to speak on all designated agenda items.  Lot owners in mandatory homeowners' associations have a similar right to attend meeting of their association's board and, according to F.S. Section 720.303(2)(b), they also have the right "to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes."

Chapters 718, 719, and 720 each contain provisions allowing the association to adopt reasonable written rules governing the frequency, duration, and manner of unit owner statements.

But what exactly constitutes a "reasonable" rule in regards to "duration"?   In other words, how long should a member be entitled  to speak on a particular agenda item?

There is nothing in the condominium or cooperative statutes to help answer this question.  However, ROC managers, board members, and their attorneys could look to that "3 minute limitation" in F.S. Section 720.303(2)(b) for some guidance.   We've thus often suggested to our ROC clients that limiting a member to speaking for no more than three minutes on any agenda item would appear to be reasonable.

However, if HB 1195 is signed by the Governor, effective July 1, 2011, that three minute standard will be removed from F.S. 720.303(2)(b).  Members attending board meetings in mandatory homeowners associations will have the right to speak at such meetings "with reference to all designated items".

It's interesting that the provision does not specify "designated agenda items" as do both the similar provisions in Chapters 718 and 719.

While I have no idea why the "3 minute limitation" was removed, I do know that it's still very important to have reasonable written rules governing the behavior of members at board and membership meetings.

Hopefully, resident owned communities that don't have those written rules will put that task on their "to do" lists this summer.

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My wife and I just returned from a very hectic but enjoyable trip to Italy.   One of the towns we visited was Siena, in the country's Tuscany region.

Siena is drenched in history and is known for its Piazza del Campo, an incredible "town square" that dates from the 13th century.  The Piazza del Campo is also the site of a famous horse race that occurs twice each summer.  The other highlight of the "Campo" is Palazzo Pubblico, Siena's ancient and impressive town hall.

Inside the Palazzo Pubblico is a massive fresco called "The Allegory of The Good and Bad Government".  It's regarded as one of the masterpieces of the Renaissance and is one of the few pieces of art from the 14th century that's does not have a purely theological theme.

I'll blog about a less "artsy" topic in my next entry but in the meantime I hope you'll check out the links I've posted and agree with my feeling that It's nice to know that the importance of good governance was a topic of discussion almost seven centuries ago.

Ciao!

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Those of you that have attended our seminars for resident owned communities know that I stress the importance of all board meetings being properly noticed and open to all association members.

I'm asked at least several times every year whether a ROC board can meet in "emergency" session and thus dispense with the requirements to post a notice of the board meeting at least 48 hours before the meeting (or, in certain situations, to provide the notice to the members at least 14 days before the meeting).  

Sometimes, the question involves an item that was not included in the agenda for an otherwise properly noticed board meeting but was considered or attempted to be considered by the board on an "emergency" basis.

The Florida Statutes governing condominium associations, cooperative associations, and mandatory homeowners' associations provide for the board to act in an emergency without first providing notice to the membership.   In fact, several years ago, the legislature added Florida Statute Section 718.1265 to the statutes governing condominium associations to specifically provide for a condominium association's emergency powers in response to "damage caused by an event for which a state of emergency is declared" under Florida law.

Neither cooperative associations nor mandatory homeowners' associations were granted the specific powers set forth in F.S. Section 718.1265 and an emergency situation could exist in a community even if a state of emergency has not been declared.

So exactly what constitutes an "emergency? 

Here's my simple rule of thumb:  Can the situation wait until proper notice is given?  In other words, will the community suffer severe damage that will be cost a substantial amount to repair or be impossible to repair if the board waits 48 hours before it acts?  

Here are a few examples of what I consider an "emergency":
 

• The need for immediate response either before, during, or after a hurricane
• The clubhouse is destroyed or severely damaged by fire or weather related event
• A water main that serves the community breaks and sewage is running down the streets of the community

And, regardless of what board members may think, I don't believe any of the following constitute an "emergency":

• An important issue must be voted on before the next scheduled board meeting and was not placed on the agenda for the board meeting that is scheduled for today
• The association has an opportunity to buy a truck at a great price but has been told it must act today
• A crack has developed in one of the shuffleboard courts and the contractor says he'll give the association a "bargain" price if the board can commit to him immediately

Board members should use a common sense approach when considering whether "emergency" action is permitted.   The members of community associations have the right to know when the board is meeting and what issues the board is considering--and unless a situation truly demands immediate action in order to protect the community, its residents, and its property, the board should simply schedule a "special" board meeting to deal with the situation and post the notice and agenda as required by Florida law.  

Better to wait that short period of time than deal with angry residents or have to explain to our Department of Business and Professional Regulation why the board violated Florida law.

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Last week I posted an entry about attempts by some members of Florida's legislature to eliminate the  regulation of Community Association Managers as well as the Division of Florida Condominiums, Timeshares and Mobile Homes and (for good measure) end mandatory non-binding arbitration for certain disputes between owners and the associations governing their communities.

Proposed Committee Bill BCAS 11-01 moved quickly through the Business and Consumer Affairs Committee of Florida's House of Representatives and was then assigned a bill number, becoming House Bill (HB) 5005.   According to reports from Tallahassee, HB 5005 was being "fast tracked" and was destined to breeze through one or two other House committees. There was concern that HB 5005 would then join up with a companion Senate Bill and would be voted on and approved by both the House and the Senate before many of those most affected by this legislation would have been made aware of what was occurring in Florida's capital.

However, during the past week, HB 5005 somehow jumped off that "fast track".   Apparently, HB 5005 entered the Economic Affairs Committee of Florida's House of Representatives as a 280 plus page juggernaut and exited that committee as a much less imposing 63 page piece of legislation.

Substitute HB 5005 preserves the Division of Florida Condominiums, Timeshares and Mobile Homes as well as the mandatory non-binding arbitration program and maintains the laws providing for the regulation and licensing of Community Association Managers.

I would assume that our legislators heard from more than a few organizations over the past week or so (including the Federation of Mobile Home Owners and the Community Associations Institute).  I also have no doubt that a noticeable segment of the over three million residents of Florida ROCs made their feelings known to our representatives in Tallahassee.  

At least for now, HB 5005 is no longer a bitter pill for resident owned communities in Florida to swallow.  

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I've spent part of the past few days in email correspondence and telephone and person to person discussions about Proposed Committee Bill (PCB) BCAS 11-01 with fellow community association attorneys, ROC managers, and concerned board members.

As you may already know, earlier this week, the Business and Consumer Affairs Subcommittee of the Florida House of Representatives (by a 10 to 5 vote) passed PCB 11-01.  This bill will now be assigned a number and will be scheduled for additional committee hearings.   The concern is that this bill is on a fast track and will not have to undergo deliberations in more than one or two other House subcommittees and that, while no companion bill has been filed in the Florida Senate (at least as of earlier today), that Senate companion bill will be forthcoming in the very near future.

So what's the big deal about PCB 11-01?

How about these for starters--within this proposed bill's 281 pages, you'll find provisions that:

• Eliminate many agencies that license and regulate numerous professions in Florida, including Community Association Managers
• Eliminate what appears to be all or at least a substantial porton of the Department of Business and Professional Regulation's Division of Florida Condominiums, Timeshares, and Mobile Homes
• Eliminate the mandatory non-binding arbitration provisions found in Florida's statutes governing condominium and cooperative associations

Please check out the full text of PCB 11-01 if you want to verify the incredibly far-reaching language that's now being considered by Florida's lawmakers.  

If you are a homeowner or condominium owner in a resident owned community, you might want to contact your state legislators about this bill.

I'll have another entry later this week.

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I've been spending a good deal of time recently attending the annual membership meetings of a number of the ROCs we represent and helping many of our communities prepare for these meetings.

I thought I'd list a few reminders for board members and managers of condominium and cooperative associations preparing for annual meetings:

• The annual meeting is a meeting of the members--it's not a board meeting.   While it's common for the board members at the annual meeting to sit and face the unit owners, the directors should remember that it's the membership that will be voting on the issues on the agenda.
• The agenda should concisely and clearly list what business will be considered by the membership.  Only items on the agenda can be considered by the members.
• Ballots are NOT proxies and cannot be used to establish a quorum.   While only twenty per cent of the unit owners are needed to cast ballots in order to conduct an election of the association's directors, other items that require the approval of the unit owners at the annual meeting must occur at a meeting where there is a quorum of the membership's voting interests present.  That quorum requirement is usually a simple majority of the voting interests.
• As we all know, the quorum requirement can be satisfied through the use of proxies that allow a unit owner who does not attend the meeting to appoint a proxy holder to cast that absent unit owner's vote.   Florida statutes governing condominium associations and cooperative associations allow both limited and general proxies to be used to help establish a quorum.

Occasionally, a cooperative or condominium association will have an annual meeting where the unit owners will not be voting on any item that would have to be included on a limited proxy form.  Communities that are fully funding reserves and conducting annual audits would thus not be voting to waive those requirements and might have no other issues requiring a unit owner vote requiring limited proxies.  However, managers and board members in these communities should still deliver a general proxy form to the unit owners and take great care to stress to the membership the importance of properly completing and returning those general proxies.   Keep in mind that if the unit owners decide that there's no reason ton attend the annual meeting (since "nothing important" is happening) and not enough of those unit owners return completed proxies to the association, the association may not be able to conduct any official business at the annual meeting because a quorum was not obtained.

Hopefully, problems of this nature will remain extremely rare in Florida's resident owned communities.

We'll be posting the dates and locations of this season's last set of seminars as well as several speaking engagements within the next two weeks and hope you'll be able to attend one of those events.

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I cringe every time a member of a resident owned condominium or cooperative association mentions that an event has been scheduled to "meet the candidates" running for the board of directors of that community. 

It's clear from the Florida Statutes governing the election of directors in condominium associations and cooperative associations that there is a very specific process that must be followed.  For example, if a candidate requests that the association include an information sheet with the election materials to be sent to the unit owners, that sheet must be no larger than 8 and 1/2 inches by 11 inches, and must be furnished by the candidate to the association at least 35 days before the election.

The applicable Florida Administrative Code sections are even more specific and make it clear that the role of the association is to remain completely impartial in regards to any and all candidates.   Both cooperative associations and condominium associations are expressly prohibited from editing, altering, or otherwise modifying the content of that information sheet and the original copy of that sheet becomes part of the association's official records. 

The intent that the association remain completely impartial during the election process is also evident in the requirements set forth in the Florida Administrative Code that the association must obtain the consent of two or more candidates before "consolidating into a single side of a page the candidate information sheets submitted by those candidates". 

Of course, the requirements that the ballot itself only indicate the candidates in alphabetical order and that the ballot not indicate which candidate or candidates are incumbents on the board (as well as the prohibition of write-in candidates) is further evidence of the desire for a purely impartial election process free from interference or influence by the association.

Now, what happens if, in the midst of this process, the association decides to sponsor or schedule a "meet the candidates" event--and one or more of the candidates is unable to attend?  Or one candidate is not allowed to speak as long as the other candidates?  Or perhaps the sound system goes out after the first two candidates speak and the other candidates are not able to be heard by all of the members in attendance? 

How about a candidate (or one or more of his followers) that wants to pass out (or does in fact circulate) additional campaign materials at this event?  Can the association allow this at an association sponsored event?  If so, are these materials now part of the "official records" of the association?

Finally, what happens when one of the candidates who is not elected to the board of directors complains that he lost the election because:

• he was unable to attend the "meet the candidates" event and notified the association but the association refused to reschedule,
• he wasn't allowed to speak for as long as the other candidates,
• other candidates were distributing additional campaign materials at the event and he was not told this would be allowed,
• the sound system went out while he was speaking, or
• he didn't feel he needed to attend the event since he had already provided the association with his information sheet

I'm not sure any condominium or cooperative association wants to find out whether an arbitrator with the Department of Business and Professional Regulation or a judge in one of our county or circuit (or appellate) courts will agree with that candidate when he argues that the association, by sponsoring that "meet the candidates" event, violated the provisions of the Florida Statutes and the Florida Administrative Code that seek to protect and preserve the impartiality of the election process.

Hopefully, ROC boards will consider these concerns when deciding whether to sponsor or schedule "meet the candidates" events in the future.

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I'm surely not alone in trying to understand the tragedy that occurred just over a week ago in Tucson.   Regardless of one's political views, it's certainly worth considering the clear lack of civility and common courtesy that seems to be the rule rather than the exception throughout our country today.

Several days after the shootings in Arizona, I attended a meeting at one of the communities we represent in Southwest Florida and was saddened to observe a level of disrespect and rage that simply has no place in ROCs.   After the meeting, several residents mentioned to me that had I not attended, the meeting would have been disrupted by a number of unit owners.   Several other members approached me after the meeting and stated that I had been "duped" and hadn't heard the "other side" of the story.

As an attorney that represents many community associations, I've often had to explain to unit owners that we don't have "a dog in the fight".  In other words, my role is not to take sides on any particular issue being considered by a community--I may point out factors to an association's board of directors and membership that should be considered but assuming that the actions being discussed by the association do not violate any state, federal, or local laws, my job is to help ensure that the process that leads to the result is proper and legal.

Board members are volunteers and it's very troubling to attend unit owner meetings where residents fail to treat a director with even a minimal amount of courtesy and respect.    When a board member is shouted down or where his or her name is met with hisses or jeering, I find myself wondering what causes unit owners to demonize one of their neighbors and refuse to listen to any opinion other than their own?

How can a resident owned community survive if members no longer treat other members with simple courtesy and respect?   Does any resident want to live in a community where issues are allowed to fester and be fed by rumor mongering and unfounded criticism of the motives of board members until those issues explode?   Wouldn't that resident much rather live in a community where issues are resolved by civil discussion and debate?

Every member of a resident owned community has the right to attend almost every association meeting and can inspect numerous records of the association.  For example, Florida Statutes Sections 719.106 and 719.104 call for open cooperative association board meetings and access to a cooperative association's official records.

At the same time, every association member has an obligation to be fully informed about issues that come before the board, and to treat all board members--and all unit owners--with courtesy and respect.

In a month where we cope with the carnage in Tucson and commemorate the life and death of the Reverend Martin Luther King, Jr., I truly hope that we all rediscover the art of listening and treat each other with the civility that every one of us deserves.

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What better way to start 2011 than with an "op-ed" piece in the January 3 issue of The New York Times that undermines the idea that pets are beneficial to our health and happiness? 

"Fido's No Doctor. Neither is Whiskers." was written by Hal Herzog, a professor of psychology at Western Carolina University,  and I have a feeling that this article will generate some interesting discussions in communities throughout the country.  I'll probably be answering a few questions about Professor Herzog's arguments at our upcoming seminars.

And if you're already tired of dealing with pets and other issues facing ROC board members and managers this early in the new year, keep reminding yourselves that things could always be worse--as you'll see in this report and video from a television station in Houston, Texas.   Thanks to my colleague Janet Romano at Florida Shores Bank for forwarding this story about an embattled community and its apparently out of control HOA board.

Let's hope that all of our ROCs have a very peaceful, civil, and prosperous 2011.  We'll look forward to seeing you at one of our upcoming seminars!

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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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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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Here's a wild situation that apparently occurred in a ROC in Florida as reported by one of my community association law colleagues:

Every director on the board of condominium association resigned rather than respond to a unit owner's request to inspect the association's official records.   I'm sure we're all wondering what these directors were trying to hide but the question that was raised was what could be done to keep the association itself from collapsing in the absence of board members and officers?

There is a provision in the Florida Statutes that can be used to help a condominium association in this situation.  F.S. Section 718.1124 provides that, if an association fails to fill vacancies on the board sufficient to constitute a quorum in accordance with its bylaws, any unit owner may give notice of his or her intent to apply to the local circuit court for the appointment of a receiver to manage the affairs of the association.   The form of the notice is set forth in F.S. Section 718.1124(1) and the manner of notifying the membership is set forth in F.S. Section 718.1124(2).

Once the notice is properly posted and mailed or delivered, the association has 30 days to fill the vacancies.  If this is not done, the unit owner may proceed with the petition.

If the unit owner's petition is granted, a receiver will be appointed and will have all powers and duties of "a duly constituted board of administration".   The receive will serve in that capacity until the association fills enough board vacancies to constitute a quorum and the court relieves the receiver of the appointment.

Of course, the association will be responsible to pay the receiver's salary and the court costs and attorney's fees involved in the petition to appoint the receiver.

Provisions for the appointment of a receiver in similar situations in cooperative associations and mandatory homeowners' associations can be found in F.S.Sections 719.1124 and 720.3053 respectively.

Sounds like a costly situation and one that should be avoided if at all possible.   Since the governing documents of many associations provide that board vacancies can be filled by the members that remain on the board, even if those remaining members constitute less than a quorum, perhaps the best thing to do when the entire board wants to " jump ship" is for the members to convince one of those board members to remain on the board at least until that remaining member can appoint enough new board members so that a quorum of board members is in place.

Better yet, let's all hope that our communities can avoid this nightmare.

I'll look forward to seeing some of you at next week's Community Association Festival on October 19 or 20 at the Venice Community Center! 

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Sometimes even I'm surprised by what can occur in a resident-owned community.

I recently received an email from one of the followers of my blog.  I've copied and pasted most of it below for your review and comment:

• A resident-owned community quietly begins installing surveillance cameras in buildings and on common grounds. Some of the more "private" rooms also had cameras installed... the quiet little library and the small exercise room. No official notice was given to the residents that the cameras have been installed, or worse yet, that the cameras are now functioning. No signs have been installed stating that surveillance is happening.
  
• At the last board meeting, residents learned that a computer monitor in the association office is taping all of the camera locations into a two year (?) memory system. At the same meeting, the residents were aghast to hear from the association president that he has been watching the residents, from all eight camera locations, on his own computer in ______________(note that I've intentionally deleted the President's home location here to protect the "innocent").  No one in the park had been officially notified that the cameras had been installed or were functioning before this time.
  

I'd love to hear what you think about this invasion of privacy and in particular your thoughts on exactly what laws (if any) have been broken.  In addition, do any of you believe that the members of the board as well as the association's President should have to answer to the membership?  It does not appear that the installation of these surveillance cameras was approved by the board at a properly noticed meeting open to all association members.  I'll look forward to the comments from my readers on this distressing situation.

Speaking of distressing situations, a recent column  by Eric Ernst in the Sarasota Herald-Tribune describes the plight of mobile home owners in an investor-owned community in Venice.   While the value of their homes may be decreasing, the value of the community in which these residents live (as mobile home owners on rented lots) appears to be increasing, at least in the eyes of the county's Property Appraiser.   Needless to say, many home owners in that community are not exactly thrilled with the Property Appraiser's evaluation.

I'll be posting news about another educational event for ROC board members in the next week or so as well as times, dates, and locations for our first set of the upcoming season's resident owned community seminars.   In the meantime, enjoy these first few weeks of college football!

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While we wait for newly formed Fiona to decide where she's headed, I thought I'd share an article by John Bowe from the August 8, 2010 edition of the New York Times Magazine that I read while spending a bit of time away from the office (even dedicated bloggers need a vacation now and then).

The timing of the article could not have been better given my recent entry on ASCAP, BMI and SESAC.   I hope you'll enjoy the read.

I'll be presenting a seminar for managers on Reasonable Accommodations under the Fair Housing Act following the September 1 breakfast meeting of the West Florida Chapter of the Community Associations Institute and hope to post some exciting news within the next week about another event where I'll be speaking in October. 

In the meantime, it's good to be home and let's all keep alert as it looks like Hurricane season has really heated up!

Stay safe!

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The manager at one of the ROCs we represent recently sent me a "Performance License for RV Parks/Campgrounds" from a company called SESAC.   The manager wanted to know whether SESAC had the right to insist that the community obtain a license in order to play live or recorded songs in SESAC's music catalog at community events.

I know that several other communities (both with and without RV sections) have been contacted about the need to have a "performance license" to play music in the clubhouse or rec hall.   In addition, my friends at SWFROC suggested that other ROCs wanted to know more about these licenses. 

Federal copyright laws are based on the concept of property rights--and, in the case of songs and music, these laws view the songwriter's work (the creation of the song) and the publisher's work (the distribution of the song) as a "property".   In other words, the songwriter and publisher "own" the song and no one else can use the song without the permission of the songwriter and publisher.

There are three recognized "performing rights organizations" ("p.r.o.'s") that have been established to ensure that songwriters and music publishers are properly compensated when their songs are performed in public:  The American Society of Composers, Authors and Publishers ("ASCAP"), Broadcast Music, Inc. ("BMI") and the Society of European Stage Authors and Performers ("SESAC").   Basically, each of these organizations has compiled a huge catalog of music and protects the property rights of the creators and publishers of that music by collecting licensing fees from businesses that use any of that music and distributing those licensing fees as royalties to songwriters, composers, and music publishers in their catalog.

The "Frequently Asked Questions" section on ASCAP's website defines a "public performance" as a performance "that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances)".  A "public performance" is also a performance "that is transmitted to the public" such as radio or television broadcasts, music-on-hold (yes, that means the music you have to endure while waiting for a real person to speak with you on the telephone), cable television, and by the internet.   

With a few very limited exceptions, any "public performance" requires the permission of the owner of the music or his or her representative--and that usually means ASCAP, BMI, or SESAC.

As far as the big three "p.r.o.'s" are concerned, any "public performance" of any music in their catalog that does not fall within these limited exceptions requires a license from that "p.r.o." and the failure to obtain that license is a violation of Federal copyright laws.

ASCAP, BMI, and SESAC will actively pursue businesses that violate these copyright laws.   For example, earlier this summer, ASCAP announced that it had filed 21 separate copyright infringement actions against nightclubs, bars and restaurants in 13 states.  Apparently, in each of these cases, the offending business either failed to obtain a license from ASCAP or had failed to pay the fees owed to maintain its license and publicly performed musical works of songwriters, composers, or music publishers in ASCAP's catalog.

The penalties for copyright infringement can be substantial--and in extreme cases may cost an offending business at least $100,000 in fines.   

In addition, having a license to play songs from the catalog of one "p.r.o." does not give a business the right to play songs from the catalogs of the other two "p.r.o.'s"--separate licenses will have to be obtained from those two "p.r.o.'s" to play songs from their catalogs.

Finally, a few other points to consider:

• Purchasing sheet music or a record or CD does not authorize that purchaser to publicly perform that music--for example, by performing that music live or playing the record or CD at a community event in the ROC clubhouse.
• ASCAP's "Frequently Asked Questions" section notes that some people "mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers."  According to the ASCAP site, the copyright laws say that "all who participate in, or are responsible for, performance of music" are legally responsible--in ASCAP's view, "since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license.  Music license fees are one of the many costs of doing business."
• Associations that have "movie nights" for their residents and guests should be aware that copyright protection also extends to movie producers and distributors

Obviously, ROC managers and board members have some important factors that must be considered when events involving music are held in the common areas of the community.   

I've just skimmed the surface of this topic but would hope that every ROC consults with its attorney when faced with these issues.

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 I just read an article at the CNN website about the Americans With Disabilities Act, which was signed into law by President George H. W. Bush on July 26, 1990.   That article contained a link to a story that personalizes the importance of the ADA and its intent to insure that all citizens have the ability to function to their fullest capacities regardless of their particular physical, mental, or emotional challenges.

In my last entry, I summarized the decision of an Administrative Law Judge that found a landlord liable for more than $50,000 in civil damages and penalties because the landlord was held to have retaliated against a single mother who filed a Fair Housing complaint.

As I've mentioned before, our nation's fair housing laws and the ADA are rooted in the civil rights legislation of the 1960's and all managers, board members and residents in ROCs should remember that any attempts to restrict the rights that have been granted by our federal and state legislatures and courts to persons that fall within any of these "protected classes" may subject the community to consequences that are both severe and damaging.

Just something to consider as we observe the 20th anniversary of the ADA.

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Several of the resident-owned communities we work with have had the great displeasure of dealing with complaints filed by residents under the Fair Housing Act.   Most of these complaints are without merit and are eventually resolved in favor of the community.  Quite often, the resident filing the complaint is simply trying to delay an eviction action, has a personal vendetta against the manager or one or more board members, or is attempting to prevent the association from exercising its rights to determine whether a "reasonable accommodation"should be granted to the resident.   

It's not a stretch to say that any resident that files a Fair Housing complaint is often regarded by many in the community as a major aggravation that is costing the association money and creating conflict and misery for his or her neighbors.   Occasionally, other residents in the community (and even a few board members) will strongly suggest that the ROC would be better off if the association simply filed an action to evict the complaining resident.

As most of you already know, such a course of action is a recipe for certain disaster.  The latest example can be found in a press release issued by the Department of Housing and Urban Development on July 16, 2010.   

The press release summarized the decision of a HUD Administrative Law Judge who ordered an Iowa landlord to pay $52,150 in damages and civil penalties for retaliating against a single mother of three by threatening to evict her because she filed a housing discrimination complaint.

The brief facts are as follows:

• The mother's fair housing complaint alleged that the landlord refused to rent her a three-bedroom apartment and unjustly charged her a higher security deposit because of her sex
• HUD found no evidence of sex discrimination
• However, HUD nonetheless charged the landlord and the landlord's management company with unlawfully retaliating against the tenant by terminating her lease and attempting to evict her because she filed the fair housing complaint

It's important to note here that it was the action of retaliating against the renter that formed the basis of this judgment--even in the absence of any finding of discrimination.

Please keep this case in mind the next time one of your residents confronts you and demands that the association evict the "gadfly" that's filed a fair housing complaint.  The last time I checked, $52,000 was still a lot of money--whether in Iowa or in sunny Florida.

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It appears that, effective July 1, 2010, members and employees of condominium associations and mandatory homeowners' associations in Florida will be entitled to some additional privacy protections thanks to Senate Bill 1196. 

The Florida legislature, through Senate Bill 1196, has revised Florida Statute Sections 718.111(12) and 720.303(5) to provide that the following records--in addition to those already protected--shall not be accessible to condominium unit owners or subdivision parcel owners:

• Personnel records of association employees, including, but not limited to, disciplinary, payroll, health, and insurance records
• Social security numbers, driver's license numbers, credit card numbers, electronic mailing addresses, telephone numbers, emergency contact information, any addresses of a unit or parcel owner other than as provided to fulfill the association's notice requirements, and other personal identifying information of any person, excluding the person's name, unit or parcel designation, mailing address, and property address
• Any electronic security measure that is used by the association to safeguard data, including passwords
• The software and operating system used by the association which allows manipulation of data, even if the unit or parcel owner owns a copy of the same software used by the association.

However, for some reason, Florida Statute Section 719.104(2), which governs the official records of a cooperative association, was not amended by Senate Bill 1196.  

Members and employees of cooperatives thus will now have less privacy protection than their counterparts in condominiums and subdivisions.

I assume that this was not intended by Florida's legislators and that a "glitch bill" will be introduced at the next session in Tallahassee to ensure members and employees in all categories of resident owned communities are given equal privacy protection. 

In the meantime, members of cooperatives might want to bring this to the attention of their state legislators.

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Governor Crist signed Senate Bill 1196 into law last week and I'll be posting several entries about the amendments to Florida's statutes affecting condominiums, cooperatives, and mandatory homeowners' associations in the coming weeks. 

I'd like to first mention a provision in Senate Bill 1196 that corrects a "glitch" in the statutes governing cooperative associations.

SB 1196 amends Florida Statute Section 719.106(1)(d)6 to provide that, unless a cooperative association's bylaws provide otherwise, a board member appointed or elected to fill a vacancy on the board that occurs before the expiration of the term serves for the full remaining term of the seat being filled.   Although the Florida Administrative Code Section that expanded on F.S. 719.106(1)(d) specifically provides for a vacant seat being filled for the full remaining term, because the statute itself was silent on the issue, there was some uncertainty as to whether the vacancy was filled for the full term or only until the next annual meeting.   This amendment removes any potential inconsistency between condominium associations and cooperative associations on the issue of filling a vacant position on the board that occurs before the expiration of the term.

SB 1196 further amends the statutes governing retrofitting for fire sprinkler systems in both condominiums and cooperatives by prohibiting local authorities from requiring completion of fire sprinkler system retrofitting before the end of 2019.   This is a five year extension from the date provided for prior to this amendment.   The association membership still has the right to "opt out" of retrofitting.

SB 1196 also adds several categories of information that is not to be made available to members or parcel owners in mandatory homeowners associations.

In my next entry, I'll discuss some changes found in SB 1196 that are intended to help ROC boards and managers deal with our foreclosure crisis.

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I'm posting two very different articles for the education and enjoyment of my blog readers:

• A horror story from a recent edition of the Fort Lauderdale Sun-Sentinel about a ROC board's disastrous decision to forego insurance coverage.
• A much lighter report from the May 16, 2010 edition of the St.Petersburg Times about the "Airstream Ranch" now featured along I-4 in Hillsborough County.

I hope you'll find these stories interesting and informative.  

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Most ROC managers and board members know that Florida statutes governing condominium associations and cooperative associations allow directors to attend a board meeting by phone.  

While the statutes governing mandatory homeowners associations don't provide for an HOA board member to appear by phone at a board meeting, if the HOA is a not-for-profit corporation (and most are), the provisions of Florida Statute Section 617.0820(4) may apply and allow HOA directors to participate by "any means of communication by which all directors participating may simultaneously hear each other during the meeting".

The statutory provisions governing condominium and cooperative associations focus on the ability the directors not attending the meeting in person to hear and be heard by the board members attending in person as well as the unit owners present at the board meeting.  Both statutes (Section 718.112(2)(b)5 for condominium associations and 719.106(1)(b)5 for cooperative associations), in contrast to Section 617.0820(4), specifically refer to a "telephone conference" and the use of a "telephone speaker".

But what about Skype?

Many of my blog readers may know that Skype is a free computer program that allows its users to speak at no expense with other Skype users through their computers via the internet.  

One of the manufactured housing cooperatives we represent was thinking about using Skype as a substitute for phone conference calls for directors who could not appear in person for board meetings.   At the time, I hadn't sampled Skype and felt that the process might be too cumbersome and was concerned about statute's specific reference to the use of a telephone.

That was several months ago--before I retired the old but trusty laptop that my younger daughter had handed down to me and purchased a new laptop with a built-in web camera feature.   I thus had an excuse to try Skype and was very impressed with the audio and visual quality of the connection (no doubt to the amusement and mild annoyance of my daughters and one of my nieces who were the first three recipients of my Skype "test run" and who of course have used Skype for several years).

I visited Skype's website and it appears that Skype users can easily arrange for conference calls that will allow everyone on the call to hear and be heard.   I can certainly picture board meetings where there will be a laptop (rather than a telephone speaker) in the center of the table at the ROC clubhouse where the meeting is being held--all at no cost to the association other than the ongoing monthly charge for internet service and, if a member's laptop is not on that clubhouse table, the one-time charge for the association to purchase a laptop.

While using Skype rather than a telephone speaker may not technically constitute a "telephone conference," I would certainly hope that as long as all board members and unit owners can hear and be heard, a board meeting where some directors attend by Skype would meet the statutory requirements.

I'm can't wait for my next chat with that forward thinking ROC.

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One of the resident-owned cooperatives we work with recently contacted me with a very interesting question.   This ROC wanted to create a "community garden" on an unused common area and the manager wanted my opinion as to whether the board could authorize this "community garden" or whether a vote of the members would be required.

As many of my blog readers know, the answer to this question turns on whether creating a "community garden" is a "material alteration" of the common areas.  The applicable section of the Florida Statutes for cooperatives states that, unless other procedures are included in the community's governing documents or such action is expressly prohibited in the articles of incorporation or bylaws governing the community, a ROC may not "materially alter" the common areas of the community unless the action is approved by two-thirds of the total voting interests in the community.   The applicable section of the Florida Statutes governing condominiums has similar language but requires (in the absence of any language in the condominium documents)  the approval of 75% of the total voting interests.

So is this community's planned "community garden" a "material alteration"? 

While there is no clear-cut rule determining exactly what is and what isn't a "material alteration," there are a few important factors to consider:

• The common area in question is currently unused
• No structure would be build on this common area
• The nature of the common area would not be substantially changed

Based on these factors, my "gut feeling" is that this "community garden" would not constitute a "material alteration" and the board could authorize this usage without membership approval.

My colleague from our Tallahassee office, Karl Scheuerman, provided me with a copy of a 2003 arbitration decision from Florida's Department of Business and Professional Regulation, Tilney v. Association of the Fountains, Inc., which determined that a condominium association board's landscaping project over a portion of the common elements did not constitute a "material alteration".  The arbitrator reviewed and discussed several prior decisions from Florida's appeals courts and DBPR arbitrators in the process of making his determination.

While the Tilney decision provided me with an additional reason to advise that the "community garden" was not a "material alteration," I suggested to the ROC manager that the best and safest course of action--both legally and politically--might be to obtain membership approval. 

After all, why fight a battle that could have been avoided in the first place--especially if the board knows that a substantial majority of the membership is in favor of the planned improvement--even if it's not a "material alteration"?

I'll be finishing a very busy season of presentations on Tuesday morning, April 20, at the Mid-Florida ROC meeting at Country Club Manor in Eustis.  We've had great attendance and fantastic responses at all of our recent seminars and I want to thank all of our hosts for the hospitality and our attendees for their participation.  

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Board members and managers in resident-owned condominiums and cooperatives may recall that tucked away in Chapters 718 and 719 of the Florida Statutes are several provisions that require associations to "retrofit" their "common areas" with handrails or guardrails and fire sprinkler systems or other "engineered life safety" systems.   The statutes provide that these retrofitting requirements may be waived by the members of associations where the common areas are not in a "high rise building," which is defined as "a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story".

ROC board members should note that even if a community does not have a "high-rise building" the members must still waive the retrofitting requirements.   The voting procedures differ for the waiver of the two different types of retrofitting:

• Florida Statutes Sections 719.1055(5) and 718.112(2)(l) allow for limited proxies, ballots personally cast at a duly called meeting of the members, or a member's written consent to be used in a vote to waive the requirement to retrofit a fire sprinkler system or other engineered life safety system.
• However, according to Florida Statutes Sections 719.1055(6) and 718.1085(1), neither limited nor general proxies can be used for a vote to forego retrofitting for handrails or guardrails.  This vote must be made in person at a duly called membership meeting or by execution of a written consent by that member.

The decisions to waive or forego these retrofitting requirements become effective upon the recording of a certificate attesting to such vote in the county where the ROC is located.  The association also must notify the members of the decision to forego retrofitting after the vote--within 30 days after the vote to waive the sprinkler system retrofitting and within 20 days after the vote to forego the handrail retrofitting.

Since the statutes provide that the local authorities that would have jurisdiction over the community buildings cannot require retrofitting of the common areas until the end of 2014, ROCs still have a few years to plan and schedule the membership meeting where these votes will occur.  

Just something to keep in mind during the "off season".  

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I've been conducting "mini board orientations" at our current series of ROC seminars at Harbor Oaks in Fruitland Park, Japanese Gardens in Venice, and Golf Lakes in Bradenton.  In my presentation, I provide a list of ten suggestions to help board members deal with the issues that arise in resident owned communities.

One of those suggestions is that board members should know and understand the costs that may be involved in actions that they take to enforce community rules.  There is always someone in a resident owned community (quite often a board member) that insists that the "principle" of the situation requires that the board take a "hard line" approach.

I'll be highlighting an article from last Friday's Sarasota Herald Tribune when I conduct my next "mini board orientation during  our seminar at Enchanting Shores in Naples on the morning of April 1.  The article describes a battle that's being fought between the resident of the Summerfield community in Lakewood Ranch and the homeowners association that has fined her over $4000 because she has displayed too many decorations on her lawn. 

After you've read this article, you'll probably understand why the outline for the portion of my "mini board orientation" that deals with these types of situations is titled "Principle Costs HOW MUCH?"

I'll try to keep you advised of further developments in this situation within the Summerfield community.

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A column in a recent edition of the Sarasota Herald Tribune highlighted the problems that all too often arise in communities when boards and managers fail to enforce a community rule on a consistent basis.   When a particular rule is enforced only against some of the residents in the community (with no legitimate reason for the rule's "selective enforcement"), it becomes difficult, if not impossible for that particular rule to withstand a legal challenge from a resident that feels he or she is being singled out for this "selective enforcement". 

I discussed this problem in my "mini board orientation" at our ROC seminars last week at Japanese Gardens in Venice and this week at Harbor Oaks in Fruitland Park.  Thanks to both of these communities for being gracious hosts and to all of the attendees.  I'll be presenting the same "mini board orientation" March 23 at Golf Lakes in Bradenton and on April 1 at Enchanting Shores in Naples.  Please contact either Karen Midlam (kmidlam@lutzbobo.com) or Kathy Sawdo (ksawdo@lutzbobo.com) if you haven't already rsvp'd and would like to attend one of those seminars.  These seminars begin at 10 a.m. and end by 12:30.  There's no charge to attend and refreshments are served.

I also wanted to note that last week a 96 year old man in Venice was attacked by a rabid otter while taking his early morning walk.   Fortunately, the man was rescued by several onlookers but suffered some fairly serious cuts and bites and both he and one of his rescuers will require a series of rabies shots.  Every community seems to have at least one resident that takes great pleasure in feeding the raccoons, birds, alligators, etc. that share Florida with us.   These residents need to be gently but firmly reminded that the "wild" in "wildlife" means just that, and that if the community has rules against feeding these wild animals those rules will be enforced--in a consistent manner against all residents in the community.

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I always enjoy reading Richard White's column in the Florida Community Association Journal.  While there are several attorneys that contribute regularly to this publication, Mr. White presents the manager's perspective on questions and issues arising in resident owned communities.  

His column in the January 2010 issue of the Journal included an answer to a reader who asked whether Florida Statutes, an association's bylaws, or Robert's Rules of Order prohibited a ROC President from making a motion.   I appreciated Mr. White's  response as I've answered the same question in substantially the same way on many occasions.

Here's a summary of what Mr. White (and I) have to say on this issue:

• Board members are elected by the general membership and they answer to the general membership
• Motions and resolutions must be voted on by the directors as they (the directors) are responsible to the general membership
• Officers are elected by directors and thus have duties to these directors
• In a board meeting, the primary responsibility of a person who is both an officer and a board member is to fulfill his or her obligation to the general membership as a board member, and this requires that each board member have the right and responsibility to make motions and to vote.
• Accordingly, not only can the President make motions, the President must vote on any motion that comes before the board.

Mr. White also states (and I agree wholeheartedly) that Robert's Rules of Order is "the most misunderstood guide as a directive" in ROC board and membership meetings.  Many residents don't realize that there is a specific section in Robert's that covers procedures in small boards (where there are not more than a dozen board members).  As Mr. White notes, nowhere in Robert's is there any prohibition against a President (or any other officer) making a motion or voting.

As I've mentioned in other entries to this blog and on many occasions during our seminars, board members should only abstain in those very rare occasions when a legitimate conflict of interest   exists.

The general members in a resident owned community elect directors and expect  them to vote on all issues coming before the board.  Many thanks to Richard White for highlighting this in his column.

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The last of our second series of seminars for the season is set for February 24th at Caribbean Isles in Apollo Beach.  We'll be starting our last set of presentations less than two weeks from now.

Here are the dates and locations of these upcoming seminars:

• Wednesday, March 3, at Japanese Gardens in Venice
• Tuesday, March 9, at Harbor Oaks in Fruitland Park in Lake County
• Tuesday, March 23, at Golf Lakes in Bradenton
• Thursday, April 1, at Enchanting Shores in Naples 

We'll be covering a number of very interesting topics, including a mini-orientation for ROC board members and a discussion of financial opportunities for ROCs in this challenging economy.  Current cases and pending legislation will be covered, including any additional information we've gathered on House Bill 419 and companion Senate Bill 864  that appear to be on the agenda of Florida's legislature during its upcoming session.  As always, we'll try to provide ample time for a general "question and answer" session.   The seminars will be begin at 10 a.m. and we should be finished by 12:30 pm at the latest.

Refreshments will be served, and there's no charge to attend.  If members of your community would like to attend any of these seminars, please rsvp by emailing either Kathy Sawdo at ksawdo@lutzbobo.com or Karen Midlam at kmidlam@lutzbobo.com.  Just let them know which seminar you'd like to attend, the name of your community and the number of residents from your community that will be attending, and whether you'll need directions to the host community.   We like to give each of our host communities a "head count" of attendees a few days prior to the seminar that community is hosting so, if at all possible, please rsvp at least a few days before the event you're planning to attend.

We hope to see you at one of these events.

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I just returned from a brief trip to Memphis, Tennessee and visited the National Civil Rights Museum, which is located at the site of the murder of the Reverend Dr. Martin Luther King, Jr.  The museum has incorporated much of the Lorraine Hotel (including the room in which Dr. King stayed and the balcony outside that room where he was killed) as well as the apartment across the street from the hotel where James Earl Ray aimed and fired from a bathroom window and took Dr. King's life.   I recall the exact moment when I learned of Dr. King's death and to be able to view the site of his assassination in an "up close and personal" manner was an extremely powerful experience for me.   I highly recommend a visit to the museum if you are in the Memphis area and suggest that you view the short movie at the museum called "The Witness" before beginning to tour the exhibits.

As I made my way through the museum, I was reminded that many of the freedoms we take for granted today are the result of great sacrifices and courageous efforts by Americans of all colors and beliefs.   I couldn't help but marvel that less than fifty years ago, Dr. King was gunned down simply because many of his fellow countrymen could not accept the fact that all Americans were entitled to certain basic rights.   The fact that many of the injustices that Dr. King sought to overcome have been remedied speaks volumes to his legacy and to the laws that our federal and local legislators have enacted during the past five decades.

My visit to the museum reminded me about the direct connection between the Civil Rights laws and the Fair Housing and Disability laws that often create divisive problems for board members and other residents in the communities we work with.   Those Fair Housing and Disability laws built upon the earlier Civil Rights laws and extend rights of equality to which all Americans are entitled.  The underlying philosophy of all of these laws is simply that no American should be deprived of certain opportunities, whether in employment, or voting, or obtaining housing, simply because of his or her color or religion or disability.   Unless our legislators carve out an exception (such as the Housing for Older Persons Act), it's that underlying philosophy that should guide ROC board members.

Some forty-two years after Dr. King's death, it's an important lesson for all of us to remember.

Thanks to our friends at Francis I in Sebring for hosting last week's well-attended seminar.  We'll be at Windward Isles in Sarasota and Marco Shores in Naples this week and at Caribbean Isles in Apollo Beach during the last week in February.  If you'd like to attend one of these free seminars and haven't yet rsvp'd, please contact either Karen Midlam at kmidlam@lutzbobo.com or Kathy Sawdo at ksawdo@lutzbobo.com.  I hope to see you at one of these events.

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ROC managers, board members and the professionals that advise them quite often long for the "good old days" when the Florida Statutes governing condominium associations (Chapter 718) and cooperative associations (Chapter 719) were almost identical in provisions concerning elections, eligibility to run for the board, and waivers of financial reporting requirements. 

Those days are, for better or for worse, long gone.   Here's a quick sampling of the just a few of the important differences that now exist between the statutes governing cooperatives and condominiums:

1. Terms of board members:   F.S. Section 718.112(1)(d) now provides that the terms of all members of the board of directors of a condominium association expire at the annual meeting unless a majority of the unit owners approve a provision in the bylaws that permits staggered terms of no more than two years.   F.S.  Section 719.106(1)(d) imposes no such term limitation on board members in cooperative associations.
2. Eligibility to serve as a board member:   F.S. 718.112(1)(d) also prohibits co-owners of a unit in condominium associations with more than 10 units from serving on the board at the same time and also prohibits persons who are more than 90 days delinquent in payments of any fees or assessments due to the association, and many persons convicted of a felony from such service.  There is also a rather curious requirement that any candidate for the board of a condominium association sign a form certifying that "he or she has read and understands, to the best of his or her ability, the governing documents of the association" as well as the provisions of Chapter 718 and any " applicable rules".   Any member of a cooperative association that wishes to run for the board of directors will find that Chapter 719 does not contain any of these eligibility requirements or prohibitions if he or she wishes to serve his or her community.
3. Financial reporting requirements:  F.S. 719.104(4)(b) allows cooperative associations that are larger than 50 units  to waive the requirement that the association's financial statements compiled, reviewed or audited.   This waiver must be done annually by the vote of a majority of the voting interests present, in person or by proxy, at a duly called membership meeting.   F.S. 718.111(13) now prohibits a condominium association's membership from waiving these financial reporting requirements for more than 3 consecutive years.

I've just highlighted a few of the many differences that now exist between Chapters 718 and 719.   We haven't even touched on Chapter 720 HOA's or those "hybrid" ROCs that may or may not be governed exclusively by the provisions of Chapter 617, Florida's statutes for not-for-profit corporations.   With the next session of the Florida legislature just a few months away, we'll just have to wait and see if there's any hope of returning to those "good old days".

Stay tuned.

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What can the directors or other members of a ROC do when the President refuses a request to bring an item before the board for consideration?

There are a number of factors that should be considered in answering this question:

• Traditionally, the President (or the board's chairperson) has been given the task of setting the agenda for meetings of the directors.  However, it's also customary that the President consult with the other directors when setting that agenda.
• There's certainly nothing wrong with allowing the President and the other members of the board to exercise a reasonable amount of discretion in setting the agenda.   Clearly, no purpose is served by allowing an issue that has already been decided by the board to have that issue placed on the agenda simply because a board member or other resident disagrees with the board's decision.
• However, the continual refusal of a President to place an item on the board meeting agenda may be a symptom of dangerous divisions within the board and the entire community.   When a ROC board member complains to me that his or her President will not place an item on the board meeting agenda, that's a warning sign that requires my contacting the ROC manager to determine the reasons for the refusal to place the item on the agenda.    Quite often, I'll learn from the community's manager that there are legitimate reasons for the President's position and at the same time will discover that personality conflicts or other issues are preventing the board from effectively governing the community.

If the President's refusal to place an item on the agenda is not justified, board members should review the association's bylaws.   The board members themselves usually appoint the association's officers, including the President, and a President that refuses to listen to a majority of his or her board members runs the risk of being removed from his office by his or her fellow board members.   While he or she would remain on the board, that removed President would no longer be able to unilaterally control the agenda.

I'll be posting the dates and locations of our seminars for February and March in my next blog entry.   We've got some exciting topics to cover and hope you'll be able to attend one of them.

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Can unit owners in resident-owned communities discover what the association is paying its employees, including the manager? 

We are asked this question frequently each year, especially when the association is in the process of preparing its annual budget.   Obviously, the association's employees would prefer that information about the compensation they are receiving be kept private and confidential and many board members and managers are uncomfortable disclosing this information to residents in the community.  Directors are concerned--quite often, with justification--that the residents in the community do not understand that a salary paid to a ROC employee in Ohio twenty years ago would not be a competitive salary in a community in Florida in 2009.

However, Florida's statutes governing condominium associations, cooperative associations, and mandatory homeowners associations make it clear that information about the compensation paid to an employee and the other benefits that an employee receives falls within the "official records" of the association.   Any association member is entitled to inspect and copy this information.

I have a few suggestions to help board members and managers maintain some amount of privacy for the association's employees without violating Florida statutes:

1. Florida's statutes require that an association member's request to inspect or copy official members be made in writing and that the association has a number of days to respond to that request.  This allows a manager confronted at the office by a unit owner demanding salary information to request that the unit owner submit his request in writing prior to allowing that unit owner access to that information.
2. The requirement that requests to inspect official records be submitted in writing allows the President or Chairperson to advise any member insisting upon disclosure of an employee's salary during a meeting of the board or membership that any unit owner  wishing to obtain this information is free to do so by submitting a written request as provided for by Florida's statutes.
3. It's also very helpful if the association's board of directors can assure its members that its employees' wages, salaries, and benefits are in line with those paid to employees in comparable communities in the area.  The board or manager can often obtain this information from its accountant or through networking with neighboring communities.   Local chapters of the Community Associations Institute and regional groups such as Mid-Florida ROC or SWFLROC  would provide an association's board members the opportunity to gather this information on an informal basis.

Finally, any member that does inspect or copy information about an employee's compensation and benefits should be gently but firmly reminded that any employee of the association deserves the courtesy of not having his or her salary broadcast throughout the community indiscriminately.   No unit owner would enjoy having his financial information freely discussed at the pool or in the clubhouse and any member that obtains an employee's salary information channels should respect that employee's privacy. 

In addition, ROC members living in communities where not all of the residents are members of the association (such as resident owned mobile home cooperatives where some home owners are not members of the cooperative) should keep in mind that a unit owner who divulges an employee's salary may in fact be providing that information to non-member homeowners who are not entitled to that information and who may try to use that information to damage the  association--for example, by challenging an increase in the annual rent to be paid by the non-member mobile home owners and citing the salary information that was intentionally or unintentionally disclosed to that non-member.

Clearly, every member of the association owes both the association's employees and all of the other residents in the community a high degree of discretion when that member obtains information about the compensation and benefits paid to association employees.

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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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The President of one the many "55 and over" resident-owned communities we represent recently contacted me to discuss what is becoming an all too familiar situation:

The rules governing this community specify that at least one of the persons occupying a home had to be at least 55 years of age and that any other person occupying the home had to be at least 45 years of age.   Many, if not most, "55 and over" ROCs in Florida have similar provisions.

During the past year, several residents in the community found themselves opening their homes to children who had lost jobs or were otherwise suffering financial hardships.    This community's rules were similar to many other ROCs and provided for a period of time (in this case, thirty days) where an underage person could occupy a home as a permitted "guest".   Unfortunately, none of these underage children were able to find affordable housing within that thirty day guest period. 

The residents had requested the Board for an extension of the "guest period" for their underage children and the Board had granted two separate extensions of ninety days and had advised each of the residents requesting these extensions that none of their current "guests" would be granted any further extensions.

All but one of  the underage children found affordable housing during the final extension period.  As can be expected, the members whose child was not able to secure housing outside of the community was now requesting that the Board grant yet another extension.  

I suggested to the ROC President that the Board should consider a number of factors in deciding whether to grant this latest request:

• The "55 and over" exemption to the Fair Housing Laws was not an issue as the parents (both of whom were over 55 years of age) would remain in the home with the child. 
• Since the "55 and over" exemption was not a factor, the real issue was whether the Board felt comfortable allowing a further exception to the community rules. 
• The Board had expressly stated to the requesting members that no further exceptions would be allowed and the residents in the community could certainly view the granting of another extension of time as a sign of weakness or lack of concern with enforcing the community rules.
• At the same time, every member knows the problems that our current economic crisis has created and a Board refusal to grant an additional extension might be viewed as heartless and insensitive.

I offered some guidelines that might help provide a solution--an extension for a shorter time period (perhaps thirty days) with the understanding that each and every request for an additional extension be accompanied by documentation establishing to the Board's satisfaction that the underage child was continuing to make good faith efforts to find employment that would provide him with an income sufficient to find housing outside of the community.

Clearly, there is no quick and simple answer for board members when considering requests based on the economic hardship of underage children of residents in the community.    What is clear is that every community may find itself dealing with requests of this nature in the near future.

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I've always told board members that the residents in their communities elected them to vote on the issues that come before them and not to refuse or decline to vote on those issues.   There are very few circumstances that justify a board member abstaining on an issue and most, if not all, involve situations where the board member would find himself in a conflict of interest if he voted on that particular matter.

The following are not valid reasons to abstain:

• The board member feels he doesn't know enough about the issue.   It's that board member's responsibility to do his homework about the issue before the meeting.
• The board member doesn't want to take an unpopular position or offend any of the residents.  Board members should not be elected because they are nice or will make the easy and popular decisions.   They are elected to properly and prudently make the sometimes difficult and unpopular decisions required  to effectively operate the community.
• The member, who happens to be the chairman/president, feels he only has to vote if a tie needs to be broken.   In most communities, the chairman/president is elected by only the members of the board while each board member is elected by the entire membership.   I believe that the chairman/president is first and foremost a member of the board that was elected by the entire membership and has been given and accepted the same responsibility of every other board member--which is to vote on every issue that comes before the board, regardless of whether a tie vote needs to be broken.

What is the effect of an abstention?  

• The 2008 amendments to Florida Statute Section 718.111(1)(b) provide that a member of the board of directors of a condominium association who abstains from voting "on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action."   Apparently, that abstaining member's vote cannot be counted either for or against the action.  
• However, this provision is not found in Chapter 719.  Instead, cooperative associations are governed by Florida StatuteSection 719.104(8)(b) which provides that a director who is present at a board meeting is presumed to have assented to the action taken by the board unless  the director votes against such action or abstains because of an asserted conflct of interest.    It would seem that any abstention that is not based on a conflict of interest would be held to be a vote "for" the action taken by the board.
• It appears that the provisions of either Florida Statute Sections 607.0824(4) or 617.0824(4) will  apply to homeowners associations, depending on whether that particular association is organized as a for profit (Chapter 607) or not for profit (Chapter 617) corporation.   Those sections provide that a director who is present at a meeting of the board or a committee of the board when corporate action is taken is held to have assented to that action unless he either objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting specified affairs at the meeting, or he votes against or abstains from the action taken.   

As you can see, the statutes are not quite identical and can cause some confusion.   My apologies to those of you that caught my earlier entry this morning which did not include the reference to Section 719.104(8)(b).   We've talked about this not quite logical provision at a number of our seminars and thanks to the followers of this blog that reminded me of the inconstency between Chapter 718 and Chapter 719.  

In any event, the best way to avoid the questions arising from abstentions is for a board member to vote on the issue unless a conflict of interest prevents him from doing so.

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ROC managers and board members that have asked me to help create or amend rules governing their communities know that I stress the importance of a unit owner obtaining the written approval of the board before that unit owner can take certain actions, including the following:

• making additions to his unit
• bringing in another occupant
• having a pet
• leasing or subleasing his unit  

My colleague Michael J. Gelfand, a partner in the Gelfand & Arpe, P.A. law firm in West Palm Beach,  reported in the August 2009 edition of the Florida Community Association Journal on a recent decision from one of Florida's appellate courts.  It's the case of Curci Village Condominium Association, Inc. v. Maria, and the opinion of Florida's 4th District Court of Appeals focuses on a  provision in the condominium association's documents requiring prior written approval.

The unit owner in the Curci Village case defended the landscaping changes he had made by claiming that the association's president, who was also the manager for the developer who controlled the association, told him that he "didn't have a problem with" those landscaping changes when the unit owner first proposed them.  However, because the association's declaration of condominium required written approval for landscaping changes, a dispute between the unit owner and the association arose and resulted in this lawsuit.

The appellate court noted that Florida Statute Section 718.303 requires unit owners to comply with the condominium's declaration of condominium and viewed that the declaration of condominium was a written contract between the association and the unit owner.    Because that written contract (the declaration of condominium) required prior written approval for an alteration to the unit, the unit owner could not reasonably rely on the oral permission of the association's officer or director.

The Curci Village decision should be very helpful to ROC boards and managers in communities with rules requiring prior written approval when a unit owner who did not obtain such approval argues that the manager or a board member gave him verbal permission to perform the disputed action.  However, while it's always preferable to have rules requiring prior written approval, ROC managers and board members must remain vigilant and make sure that those rules are consistently and faithfully followed.

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Several weeks ago I mentioned the educational opportunities offered at the upcoming annual convention of the Florida Manufactured Housing Association at the Saddlebrook Resort just north of Tampa on October 7 and 8.  

I received a memo earlier this week from the FMHA about a "Round Table Discussion" that will be held at the convention at approximately 3:15 p.m. on October 8.   This discussion is entitled "What Works to Fill Homesite Vacancies?" and will cover a variety of methods and ideas that can be used to help communities find prospective residents.

Given today's economic climate, this is a very timely and important subject for ROC managers and board members.   Please note that this "Round Table Discussion" is open to all FMHA members and if you have questions and want to attend the convention please contact the FMHA at info@fmha.org.

Speaking of "Roundtables," I am in the process of  scheduling our first set of seminars for the "season" to be held in November and December.    We try to have several "roundtable" seminars each year in communities that are located in the geographical areas that we serve and if your community would be interested in hosting one of these events, please contact me.  

As always, we welcome your input in helping us plan the topics for these educational seminars--so if you have any subjects, questions, or issues that you'd like us to cover, please let me know. 

I'll post the dates, times, and locations of our November and December seminars in the near future.

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"Civility" is a new "buzz word" as a result of the outburst of the South Carolina congressman who yelled "you lie" during President Obama's address to the members of the Senate and House of Representatives last week.   Regardless of how one feels about the health care reform debate, this interruption of the President's speech by a member of the U.S. Congress was a shocking breach of decorum and left me feeling less than confident that our current elected officials would be able to reach any constructive resolutions to the important issues and challenges that we face.

I've had similar feelings recently after leaving several board or membership meetings in resident owned communities.   The past few years have seen a pronounced decrease in courtesy and respect and an increase in volume and vitriol.   I'm sure that almost every resident reading this has had at least one unpleasant experience with a board or membership meeting that deteriorated into a shouting match or name-calling contest.   

While no one should have to be told that his or her neighbor should be treated with respect and courtesy, the unfortunate reality is that ROC boards and managers must occasionally deal with residents that refuse to behave in a civil manner at board or membership meetings.

Florida Statutes governing board meetings in resident owned communities provide some assistance to ROC managers and board members:

• F.S. Sections 718.112(2)(c) and  719.106(1)(c), which apply to condominium associations and cooperative associations respectively, give unit owners the right to speak at board meetings on "all designated agenda items" but also allow ROCs to "adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements" to be made at board meetings. 
• F.S. Section 720.303(2)(b), which applies to meetings of mandatory homeowners associations,  specifies that members can "speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes" but again allows the association to adopt written reasonable rules "expanding the right of members to speak and governing the frequency, duration, and other manner of member statements" and also allows for the inclusion of "a sign-in sheet for members wishing to speak".

Note that all three statutes require that the rules governing members speaking at board meetings be written.

It's always helpful for the person chairing the meeting to be able to remind the membership at the beginning of the meeting or prior to the time for membership comments that the community does have these written rules and that each member will be expected to follow those rules.

We've helped numerous communities prepare written rules governing the behavior of residents at board and general membership meetings and have found that  these rules do help to discourage "gadflies" and other residents that attempt to engage in disruptive, discourteous, or uncivil behavior.  

If your community does not have written rules for these situations, you may be missing an important tool to help ensure that your members treat each other with the courtesy and respect that each resident in your community deserves.

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ROC managers and board members in "55 and over" communities know that the Fair Housing Laws and the Housing for Older Persons Act  require that at least 80 per cent of the homes in the community must be occupied by at least one person 55 years of age or older.  This requirement is often referred to as the "80/20 rule". 

Communities that qualify for the "55 and over" exemption do not violate Fair Housing Laws by denying occupancy to underage individuals. 

Every so often, a ROC manager or board of directors is confronted by one of the following situations:

• A prospective resident who is under the age of 55 claims that the 20 percent referred to in that "80/20 rule" must be reserved for underage persons--in other words, individuals under the age of 55 years.
• A prospective resident who is under the age of 55 but is disabled claims that he cannot be denied housing in the community because he is protected under the disability provisions of the Fair Housing Laws.

The rules governing the "55 and over" exemption clearly state that "at least" 80 per cent of the homes in a "55 and over" community must be occupied by at least one person 55 years of age or older.  It's the ROC and not a prospective resident that determines how the "20" in the "80/20" rule is to be used.   I've always advised ROC managers and board members to be very careful in allowing any portion of that 20 per cent to be considered "underage" housing in order to protect against the loss of the "55 and over" exemption.

A community that qualifies for the "55 and over" exemption can deny housing to an underage person who has a disability as long as the community can establish that the basis for the denial was not the disability but rather the fact that the applicant was not 55 years of age or older.    Again, the community and not the applicant determines how the 20 per cent is used and as long as the denial is based on the applicant's inability to meet the requirement that he be at least 55 years of age, the discrimination--which is based on age and not the disability--would not violate Fair Housing Laws.

Of course, every situation is different and several other factors are involved in the determination of whether a community is qualified to be protected under the "55 and over" exemption.   I would strongly advise any ROC to contact its attorney when faced with any question about Fair Housing Laws and the "55 and over" exemption..

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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 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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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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I recently received an email from a board member of one of the resident owned communities we represent.   One of the members of this ROC had requested a list of all of the "summer addresses" of the residents in the community.   The board member wanted to know whether the ROC had to provide the member with those addresses and whether it was appropriate to mail that member a list containing those addresses.

• Florida Statutes Section 718.111(12)(a)7, which applies to condominium associations, and Section 719.104(2)(a)5, which applies to cooperative associations, are identical and provide that  the association shall maintain "a current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers".   The statutes provide that this roster is part of the association's "official records".    The applicable provision of Chapter 720 governing mandatory homeowners associations almost mirrors its Chapter 718 and 719 counterparts.   
• Based on language of these statutes, and the "catch all" provisions in Sections 718.111, 719.104, and 720.303 (4), which include almost every other written record in the association's possession that is in any way connected with the operation of the community, once a member gives the association his or her "summer. address,"  that address becomes part of the association's official records and any other member can request to inspect and copy that address.
• The association is not required to mail the roster to requesting member.  The association's obligation in response to an appropriate record inspection request is simply to allow the member to inspect and copy those records.  However, I see no problem with the association mailing the roster to a member as long as any other member requesting the roster is notified of this option.  In other words, all members requesting the roster should be treated equally.   Obviously, if the roster is consistently kept current, the association can minimize time and inconvenience to its office staff by simply mailing the roster to the member and the member can be charged a reasonable cost for copying the list.

ROC members should understand that whatever addresses and telephone numbers they give to the association will have to be produced to another member that properly requests them.   ROC managers and board members should immediately contact the attorney representing their community upon receiving a request to inspect or copy records.

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Members of resident owned communities in Florida have the absolute right to attend meetings at which a quorum of the community association's board of directors are present.   A "quorum" is defined as a majority of the members of the board of directors.  Florida Statutes Section 718.112(1)(c), which applies to condominium associations, and Section 719.106(1)(c) , which applies to cooperative associations, specifically state that meetings of board of directors "at which a quorum is present shall be open to all unit owners."  Florida Statute Section 720.303(2) , which applies to mandatory homeowners associations, contains similar provisions.  The only time that a condominium or cooperative association's board of directors meeting need not be opened to the unit owners is when the meeting is between the board and the association's attorney with respect to proposed or pending litigation, when the meeting is held for the purpose of seeking or rendering legal advice.  The homeowners association statute has a similar exception that refers to proposed or pending litigation where "the contents of the discussion would otherwise be governed by the attorney-client privilege".

While the intention of Florida's lawmakers to keep board meetings open to the members of  community associations seems clear, ROC boards have, from time to time, felt the need to create their own "exceptions" to the statutory requirements.   Here are just a few examples of my favorite attempts to justify a ROC board of director's failure or refusal to comply with the requirements of Florida law:

1.   The board is meeting in "executive session" and can thus close the proceedings even   though a quorum of the board is present.

2.   The board's having a "workshop" or "agenda" meeting.  Even though there's a quorum present, the board's not voting on anything so the members don't have the right to attend.

3.    This is not a meeting of the board of directors--rather, it's a meeting of the "(insert appropriate committee name) committee"--even though a quorum of the board is present.

4.    The board's discussing some very sensitive matters (such as personnel issues or a member's failure to pay maintenance fees) and the meeting is closed to protect the privacy of the individual(s) being discussed.

5.    A quorum of the board just happens to show up on a regular basis at the same table at a nearby restaurant or wanders into the small conference room next to the community's office every Monday morning.   Of course, no association business would ever be discussed at these "coincidental" gatherings...

As I continually advise my ROC clients, if it looks like a duck, walks like a duck and quacks like a duck...it's a duck!   Regardless of what an ROC's board wants to call it, if you get a quorum of the board in a room together (or on a conference call, or in an internet chat room, for that matter), you've got yourself a board meeting and unless the very specific exception for seeking or receiving legal advice in regards to pending or threatened litigation applies, the meeting must be properly noticed and all association members have the right to attend.

Of course, the rules of reason apply.  The presence of a quorum of board members at the pool, at a social event in the clubhouse, or our seasonal ROC seminars usually won't constitute a "board meeting".   However, board members should be aware of the fact that the minute that it appears to even one association  member that a quorum of them are getting together (whether meeting in a corner of the clubhouse or by the pool even if during a purely "social" event), the board sets itself up for a claim that it is violating Florida law by having a 'closed meeting".   Those of you that have heard me speak know that I firmly believe that (a) every ROC has at least one resident "gadfly" whose sole purpose in life seems to be making board members' lives as miserable as possible and that (b) the minute an ROC's residents have any reason to believe that its board of directors are meeting "behind closed doors" those residents will immediately assume that the directors are up to no good.

You don't want to give the gadfly any ammunition and you want to keep your ROC happy and healthy...so keep the meetings open and let your ROC members see the hard work your ROC board does to make your community a great place to live.  

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Does an ROC have to allow a former member to inspect and copy the information about that member in the ROC's files?

One of the resident-owned mobile home cooperatives I work with received a written request several days after the sale of a unit from the former residents that sold the unit.  Those former residents, who were members of the cooperative, wanted to inspect the file that contained their personal information.   The ROC's manager told me that the former residents were concerned that their social security numbers were in that file.   

Florida Statutes Section 719.104(2)(c) provides that the "official records" of a cooperative association "shall be open to inspection by any association member or the authorized representative of such member at all reasonable times".   A condominium association has the same obligation to allow its "official records" to be inspected (again, by any association member or that member's authorized representative) under Florida Statutes Section 718.111(12)(c), and a similar provision exists for mandatory homeowners associations in subdivision communities per Florida Statutes Section 720.303(5).

It appears to me that these statutes give the right to inspect only to an association member or that member's authorized representative.   The governing documents of most, if not all, ROC's clearly provide that unit or lot ownership is a requirement of membership and many of these documents further provide that membership terminates upon the sale of the lot or the unit.   In other words, a resident ceases to be a "member" of the association when he or she closes on the sale of his lot or unit.  From that point forward, he or she is no longer a "member" (unless, of course, he or she owns another lot or unit in the community) and no longer can require the association to allow either that member or his or her "authorized representative" to inspect the association's "official records".  This is consistent with the definition of "unit owner" in both the cooperative and condominium statutes and "parcel owner" in the homeowners' association statute.  An ROC manager or board of directors would certainly have no problem refusing a record inspection request from a prospective purchaser who had not yet become an association member and the request from a former member should be refused for the same reason:  simply because the person requesting the inspection is not a member of the association.

While there do not appear to be any decisions from the arbitrators appointed by the Florida Department of Business and Professional Regulation that deal with whether a former member's request to inspect records can be denied, an arbitrator's decision in 2005 held that  "The Concerned Unit Owners of the Deauville Hotel Condominium Association" was not a "unit owner" and the association's receipt of a written request from that group did not create an obligation on the part of the condominium association to allow a records inspection by that group (Ibarra v. The Deauville Hotel Condo Assn., Inc., Arb. Case No. 2005-03-6532).  A similar decision was reached by the arbitrator in a 2007 case where a condominium association received a records inspection request from the "Plaza Resort and Spa Ad Hoc Committee" (Frank Hock, et. al v. Plaza Resort and Spa Condominium Association, Inc., Arb. Case No. 2006-06-8783). 

I would anticipate that the DBPR's arbitrators will continue to strictly define "member," "lot owner," and "unit owner" in the future and that only current (as opposed to past or future) association members will be the "members" entitled to inspect and copy the association's "official records".

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