Hurricane Irma Approaches Florida

 I'm sure everyone reading this post is well aware that Florida is being threatened by a massive and powerful hurricane that has already caused numerous deaths and incredible destruction over the past few days.

I'm typing this on Thursday afternoon (September 7th) and Hurricane Irma remains a Category 5 system capable of causing additional catastrophic damage.  Winds are still in excess of 180 miles per hour and tropical storm force winds extend at least 150 miles from the center of the storm.

If you are reading this in Florida, you know that water, D batteries, bread and other supplies are very hard to find and lines at many gas stations are growing by the minute.  Courts and other state and county offices (if they have not already closed) will be closed tomorrow.  Sporting events have been rescheduled or canceled, schools are closing, and airports are chaotic (and many will be closing within the next twenty four to forty eight hours).

I've posted several times in the past about the importance of following mandatory evacuation orders and not using your community's clubhouse or other common area facility as a shelter to "ride out" the storm.  I cannot overly stress the importance to evacuating when you are ordered to do so and, unless your clubhouse/common area facility is a Red Cross certified hurricane shelter, you should not use it as such.  If you have pets, you should have long ago determined what shelters are "pet friendly" and should have taken all steps needed to reserve a space at that shelter.

If you are remaining in Florida, or in any other area threatened by this dangerous hurricane, please check out Bryan Norcross' Facebook page for a very good list to help you deal with the days ahead.  

As always, the National Hurricane Center's site can provide you with much needed information about the storm.

Our office will be closed tomorrow (September 8) and hopefully we will be back up and running on Monday, September 11.

I pray that all of you and your communities are spared the worst of Hurricane Irma.

All Eyes on Erika

 Most Floridians know that our real "hurricane season" begins around the time that thoughts turn to football and our students returning to school.   This year is no different as we have been following the progress of Tropical Storm Erika.

Earlier today, Florida's governor declared a state of emergency.  While the path and intensity of Erika remains very uncertain, this is a very good opportunity for a few reminders:

  • Florida statutes grant certain emergency powers to the board of directors of condominium, cooperative, and mandatory homeowners associations in response to damage caused by an event for which a state of emergency is declared.  Managers and board members should review both the appropriate statute and the association's governing documents for guidance in the event that any emergency actions need to be taken.
  • Residents with pets should have already determined what shelters in their area will accept pets as many shelters will not do so.
  • Finally, as I have written before, if and when a mandatory evacuation order is entered for your locale, residents and their guests should leave the community.   Unless the community's clubhouse is a certified hurricane shelter, no one should be using the clubhouse to "ride out" the storm.

The National Hurricane Center is currently posting full updates on Erika every six hours and interim updates approximately three hours after a full update.  If and when Erika approaches Florida's coastline, these updates will probably occur more frequently.

Now is the time to make preparations and to be alert and aware.   Stay safe!

Cooperative and HOA Boards Will Soon Have Emergency Powers

Florida's Governor has signed into law Senate Bill 807 which contains very important changes to the laws governing resident owned communities. I'll discuss many of those in future entries to this blog but since we're now into hurricane season, I thought I'd first highlight the creation of Florida Statute Sections 719.128 and 720.316, both of which are entitled "Association emergency powers".

These new sections allow the boards of directors in cooperative associations and mandatory homeowners associations to exercise certain powers and take certain actions in response to damage caused by an event for which a "state of emergency"is declared under Florida law in the area where the community is located, unless specifically prohibited by the association's governing documents.

These powers and actions include the following:

  • Conducting, canceling, or rescheduling board or membership meetings after notice of the meetings and board decisions is provided in "as practicable a manner as possible," which may be by numerous methods, including "any other means the board deems appropriate under the circumstances."
  • Designating assistant officers who are not directors
  • Relocating the association's principal office or designating an alternative principal office
  • Entering into agreements with counties or municipalities to assist with debris removal
  • Implementing a disaster plan which may include turning on or shutting off electricity, water, sewer, or security systems and air conditioners for association buildings

There are other important emergency powers that I'll discuss in my next entry.

I want to close with a few additional points:

  • These new sections extend to boards of directors in cooperatives and mandatory homeowners associations similar powers that were granted to condominium association boards several years ago.
  • The powers must be exercised so as to be consistent with Florida Statute 617.0830.
  • Included in the emergency powers for the board of directors of a cooperative association is the power to require the evacuation of the cooperative property in the event of a mandatory evacuation order in the area where the community is located. If a unit owner or other occupant of a cooperative fails to evacuate the cooperative property after the board has required that evacuation, the association is immune from liability for injury to persons or property arising from such failure. In other words, a unit owner or occupant remains in the home at his or her own risk--not the cooperative association's.  

These two new statutes become effective July 1, 2014 and I'll discuss some additional powers and limitations in my next blog entry.

Retrofitting and Mobile Home ROC's

 Now that Memorial Day is behind us, and many of our "snowbirds" have returned to their northern homes, my blog followers who are managers or board members in resident owned manufactured housing cooperatives can turn their attention to subsections (5) and (6) Florida Statute Section 719.1055.

When I last checked, none of the manufactured housing communities in our state qualify as "high-rise" buildings and. other than certain common area amenities (such as the clubhouse), it would appear that the provisions of these two subsections, which require the members of a cooperative to "opt out" of retrofitting requirements for fire sprinkler systems and handrail and guardrails, simply are not relevant to manufactured housing communities.

Nonetheless, the requirements of these two subsections do seem to apply to all residential cooperatives, including manufactured housing cooperatives.

I'd thus suggest that managers and board members in manufactured housing communities governed by Florida's laws governing cooperatives take the steps needed to allow their members to waive these retrofitting requirements.  

Please note that, while the vote to forego fire sprinkler retrofitting can be obtained by limited proxy or by ballot personally cast at a membership meeting,  neither limited nor general proxies can be used for a vote to waive the retrofitting requirements for handrails and guardrails--that vote must be obtained at a duly called membership meeting or by the member signing a written consent. 

There are additional requirements in these two subsections, including reporting to the Division of Florida Condominiums, Timeshares, and Mobile Homes.  From what I've read so far, none of the bills passed in Tallahassee during the recent legislative session eliminate these provisions.

This summer might be a very good time for managers and board members in our manufactured housing cooperatives to work on giving the unit owners in their communities the opportunity to vote by the end of this year or in early 2015  to forego both of these retrofitting requirements.  

Let's all have a safe and restful summer--one with no hurricanes or tropical storms on the horizon! 

Repairs versus Spending Limits in ROCs

Briny Breezes is a resident owned manufactured housing cooperative located in Palm Beach County.

Two of the community's sea walls that protected the cooperative property needed repairs and upgrades.   The directors of Briny Breezes, Inc., the cooperative association that owns and operates the community, hired an engineer who reported that the required repairs and upgrades to the seawalls would cost approximately $150,000.

While there were adequate funds in the association's reserve account to pay for these repairs, Briny Breeze's governing documents clearly prohibited the association's board of directors from spending more than $30,000 for capital improvements or spending more than $30,000 for replacement of capital assets in any fiscal year.  According to the association's governing documents, the affirmative vote of at least 51 per cent of the members was required for these expenditures.

Earlier this year, Briny Breeze's manager asked the Division of Florida Condominiums, Timeshares, and Mobile Homes (the "Division") to determine whether the association's board of directors could use the reserve funds to pay for the seawall repairs that were needed to protect the cooperative property without obtaining the approval of the association's members.

The Division, in its Declaratory Statement issued this May, held that the association could use its reserve funds to make the needed repair to the seawalls without a vote of the membership.

The Declaratory Statement cited Florida Statutes Section 719.104(5), a federal bankruptcy court decision interpreting Florida law, several decisions of our state appellate courts and a decision rendered by one of the Division's arbitrators. 

The Division noted that , even if expenditures result in alterations or improvements to the community's common elements, it is within the board's authority to authorize these expenditures without member approval where the expenditures for the alterations or improvements are needed to protect the common elements.

At the same time, the Division did caution that an association's directors might very well be precluded from unilaterally spending money for upgrades that constituted material alterations to the common elements and went beyond the repairs required to protect the common elements.

The Division concluded that, while the "safest course for the board is to get a unit owner vote", the board should not be limited to "simply repair the sea wall to protect the common elements."

Hopefully, this Declaratory Statement will provide ROCs with some guidance in the future.

I'll be discussing issues affecting aging members of resident owned communities this week on "Community Matters".

Furry Companions and Service Animals next on "Community Matters"

You'll want to catch our next installment of "Community Matters" as Kevin Wells and I will be discussing therapy and companion pets and service animals with the manager of a large resident owned community in Sarasota County and a representative from Southeastern Guide Dogs.

"Community Matters" airs on WSRQ (1220 AM and 106.9 FM) on Saturday mornings from 11 to noon and online at www.sarasotatalkradio.com.   Podcasts of each of our shows are made available on Mondays after the show airs at the WSRQ site--just click on my photo and you'll be able to listen to those podcasts.

If you have any questions about this topic or suggestions for future shows, please feel free to post a comment to my blog or email me at sgordon@lutzbobo.com.

I hope you enjoy this Saturday's installment of "Community Matters".

It's Time to Purchase Flood Insurance

Earlier this week, Florida's Insurance Commissioner encouraged homeowners in our state to purchase flood insurance prior to May 1 in preparation for the upcoming hurricane season, which, as you may have read, has been predicted to be very active.

Purchasing or renewing a flood insurance policy prior to May 1 will also allow homeowners to avoid a significant  rate increase scheduled for October 1 of this year.

The Insurance Commissioner noted that Florida homeowners can purchase flood insurance from the National Flood Insurance Program (NFIP) for up to $250,000 for property damage and $100,000 for personal contents and that excess coverage can be purchased for homes valued at more than $250,000.

Many of our neighbors still don't understand that their homeowners' insurance policies do not cover damage caused by flooding.  Since flood insurance is readily available to all homeowners and is definitely affordable, the failure to have this coverage is inexcusable.

It would be a shame to incur substantial expenses as a result of damage that would have been covered by this easily obtainable insurance.

Let's hope none of us need flood insurance during the 2013 storm season--but it's always better to be safe rather than sorry!

A Consumer Alert for ROCs: SB 286 and HB 575

Earlier today, I received an email from the Community Association Institute's Florida Legislative Alliance ("FLA") alerting me to bills to be introduced in the upcoming legislative session in Tallahassee.

According to the email, Senate Bill 286 and House Bill 575 "will have a serious negative impact on community associations and other consumers of design professional services."

The email from the FLA continues:

"As presently designed, these bills will permit surveyors, engineers, landscape architects, architects and interior designers ("design professionals") to eliminate all personal liability for economic damages caused by the negligent performance of their design professional services pursuant to a contract with the consumer.  This is done by them simply placing a 'prominent statement (in their form contract), in uppercase font that is at least 5 point sizes larger than the rest of the text', and, pursuant to this legislation, an individual employee or agent may not be held individually liable for negligence."

According to the FLA, supporters of these bills argue that consumers will take steps to re-impose liability on a "design professional" upon seeing that "prominent statement" in the contract.  However, this argument--according to the FLA--"completely ignores human nature" and the fact that many, if not most, consumers (including ROC boards) sign form contracts without even reading those contracts.

In addition, while these bills do not protect design professional companies, the FLA contends that design professional companies can easily "hide" assets by placing them in other entities--thus eliminating any realistic chance of a consumer or community association recovering any amounts when suffering damages as a result of the negligence of a "design professional".

The FLA's email summarizes SB 286 and HB 575 as "an unfortunate attempt to shift the ultimate negligence liability burden from the design professionals to the consumers."

If you agree with the FLA's analysis of these bills, the FLA urges you to contact your state senator and state representative as well as the members of Florida's Senate Judiciary Committee and House Civil Justice Subcommittee to request that they oppose any attempt to reduce liability for these "design professionals".   The FLA asks that you include a reference to SB 286 in your correspondence to Florida's Senators and refer to HB 575 when contacting Florida's Representatives.

Just a reminder--if you're a ROC manager or board member and haven't already sent in your reservation for the Third Annual Community Association Festival at the Venice Community Center on Wednesday,  February 20, there's still time!  Just send an email to deanna@sleuthpt.com or call 941-809-2031.  Remember, the event's free, and that includes a continental breakfast, a barbecue lunch, and a lot of information and networking opportunities.  I hope to see you there--just wear your favorite Hawaiian shirt!
 

 

A New ROC and Interesting Thoughts About Super Storm Sandy

Marty Pozgay, the President of Florida Community Services Group, recently emailed me with the exciting news that his company has helped another manufactured housing community join the ROC family.

On October 15, the residents of Orange Harbor in Fort Myers purchased their park.   Orange Harbor has 364 mobile home sites and 130 recreational vehicle sites and is located on the Intracoastal Waterway and the Orange River.  The purchase price was $36 million and the blanket mortgage financing was provided by Bank of America.

The unit owners' cooperative association that purchased the park is Orange Harbor Co-op, Inc. and the association's President is Sidney Toll.

Congratulations to the residents of Orange Harbor and welcome to the world of resident owned communities!

I just finished reading a blog entry by Bryan Norcross, who some of you may remember from his incredible reporting in Miami during Hurricane Andrew.   He's now one of the tropical weather experts with the Weather Channel and I hope you'll find this entry from his blog at The Weather Underground as entertaining and educational as I did--and that you'll pay close attention to his thoughts on hurricanes and insurance companies.

I'll be speaking at the Mid-Florida ROC meeting at Country Club Manor in Eustis on November 27 and then we'll get into our community association seminar schedule.  I promise to post information on our first set of seminars in the next week or so.  Please let me know if you have any topics you'd like us to cover during our seminar season.

Thanks and I'll look forward to seeing you during the next few months.

 

All Eyes on Isaac!

As all Floridians know, our hurricane season doesn't really get under way until August and we're currently watching a very large system--Tropical Storm Isaac--slowly develop.  

At this point, it's anyone's guess whether and to what extent our communities will be impacted by this system.

ROC managers (and board members that remain in Florida during the "off season") should be familiar with the drill but nonetheless, here are a few reminders:

  • Pay attention to broadcast media and in particular the updates issued by the National Hurricane Center.   During these situations, rumors run rampant--particularly on the internet--but the NHC's website is an invaluable asset when the tropics begin to churn.
  • As I have preached in past years, unless the clubhouse in your community is a Red Cross certified shelter, your residents should not be congregating in that clubhouse when threatened by a hurricane.  Do not allow your residents to use the clubhouse to as a shelter or have a "hurricane party" when tropical systems threaten.
  • A mandatory evacuation order means just that--and if you are in a community in which a mandatory evacuation order has been issued, your refusal to evacuate is a violation of Florida law.   Residents that choose to remain in their communities after being ordered to evacuate do so at their own peril--and they should realize that if they require assistance during or after the storm, emergency personnel may not be able to assist them.
  •  Now is the time for residents with pets to locate "pet friendly" shelters.  Don't wait until the evacuation order is issued.
  • Make sure that any item on your property that could become a "missile" during a storm is brought inside.
  • Please let a relative or friend know where you are "riding out the storm" and let that friend or relative know how to contact the authorities if he or she is unable to locate you once the storm passes.
  • Be extremely careful when returning to your home after the storm.  Many injuries and deaths occur as a result of post-storm accidents.

One of the recent issues of the Florida Community Association Journal has some very good articles on preparing for and dealing with hurricanes and you can find other useful information at a number of other sites, such as the one for the Federal Emergency Management Agency.

Hopefully, Isaac will be more "bark" than "bite" and the rest of our hurricane season will be safe and uneventful.   Better to be prepared for the storm that doesn't come our way than to be unprepared for the one that does!

ROCs and the Doctrine of "Ferae Naturae"

Regular followers of my blog recall that I've discussed the challenges resident owned communities face when dealing with animals such as feral cats, muscovy ducks and black bears.

Many of our ROCs in South Sarasota County (and several in Pasco County) have struggled with the problem of another type of unwanted visitor--in this case, wild hogs.

Full-time residents of Florida know that living here requires accepting that our climate and sunshine is shared by all types of wildlife--in most cases, man and beast get along fairly well.   This "live and let live" attitude was displayed in a very entertaining article about a hive of "local" honey bees in today's Sarasota Herald Tribune.

But what happens when the opposite occurs--and a landlord is sued when a tenant dies as a result of a reaction to fire ant bites occurring on the landlord's property?

A recent case from Florida's Fourth District Court of Appeals provides an answer.

A resident in a mobile home park was bitten by fire ants while walking his dog within the park and died from those bites less than two days later.

His estate sued the owner of the mobile home park for wrongful death and alleged that the park owner should have been on notice of a fire ant infestation in the area where the resident was allegedly bitten.  The park owner's community manager testified that she was unaware of any other resident ever having been attacked by fire ants at the park and was also unaware of any fire ant infestation at the area of the park where the attack allegedly occurred.

The park owner did have an exterminator spray insecticide every other month in order to kill ants and an employee of that exterminator testified that he had no knowledge of any ant activity or reason to recommend treating the area where the alleged incident took place.

The exterminator confirmed that red fire ants are "wild animals" and that their natural habitat is outdoors in South Florida and further stated that permanently eradicating fire ants from a property would be impossible.

Other employees of the park owner testified that any visible ant mounds would be treated with granules, that several members of the parks maintenance staff would occasionally be bitten by ants and that the exterminator would be called if park residents reported "something out of the ordinary with too many red ants or anything like that."

The trial court granted the park owner's motion for summary judgment, holding that the park owner was not on notice of a fire ant infestation at the location of the alleged attack and thus did not have a duty to guard against red fire ants.

The Fourth District Court of Appeals affirmed the judgment in favor of the park owner and cited "ferae naturae," which is a doctrine which relates back to the Roman Empire and is based on the fact that wild animals are unpredictable and cannot be controlled.

The Court stated:

"Generally speaking, in Florida, the law does not require the owner or possessor of land to anticipate or guard against harm from animals Ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality."

Because the park owner did not harbor, introduce, or take possession of the fire ants, and attempted to treat any mounds or other infestations of fire ants, the park owner could not be held liable for the resident's death.

The Court did warn that landowners could be responsible in regards to wild animals found in artificial structures or places where they are not normally found if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises and if the landowner cannot expect others to realize the danger or guard against it.

So much for living in "Paradise"!

Update on Debby for Florida ROCs

As a follow up to last night's blog entry about Tropical Storm Debby,  Governor Scott has declared a state of emergency for Florida .

Again, managers, board members and residents of ROCs should follow any and all directives issued  by state or local authorities, including mandatory evacuation orders.

The National Hurricane Center's most recent advisory has the storm almost stationary in the Gulf of Mexico for the next few days with landfall not occurring until Friday or Saturday.

Warnings for severe thunderstorms and tornadoes have been issued by the National Weather Service throughout the day and it is anticipated that additional warnings will be forthcoming.

 

Reminders for ROCs from Tropical Storm Debby

I've spent most of the past two days following The Weather Channel and watching the water level in the retention pond behind our home continue to rise with each passing hour.  

While full-time Floridians like to joke that hurricane season doesn't start in our neck of the woods until late July or August, Tropical Storm Debby has made it clear that there's an exception to every "rule."

If you've been following Debby, you know that this storm has confounded both weather experts and computer models.  As of this Sunday evening, Debby's center was located in the Gulf of Mexico about 270 miles from Sarasota.  Debby appears to be stationary at this hour and, although it's "only" a tropical storm with sustained winds of 60 miles per hour, Debby's caused at least one death (in Lake Placid in Highlands County) and substantial damage throughout the state.

Tropical Storm Debby highlights some very important reminders for ROC managers, board members, and homeowners:

  •   It's imperative that we not let our guard down.   Last night at this time, the National Hurricane Center's official storm track had Debby headed west toward Texas.   Predicting both track and intensity of tropical storm systems is extremely difficult and complex and conditions (and a storm's path and intensity) can change drastically in a few hours.   There are numerous sites, including the National Hurricane Center's Tropical Prediction Center and Weather Underground, that can provide current information.
  •   While Tropical Storms are not as "powerful" as hurricanes, they can still pack quite a punch.  We've had numerous tornadoes in Florida today, at least one older bridge has been partially washed away, the Sunshine Skyway Bridge was closed for part of the day, and many coastal areas have suffered substantial beach erosion--all of this from a tropical storm well offshore in the Gulf of Mexico. 
  •  It's also important not to focus solely on a tropical system's path, or the National Hurricane Center's "cone".  Debby has spun off storms and tornadoes as well as pounding wave action throughout the day which have severely impacted communities throughout Florida--many of which are hundreds of miles away from Debby's projected track.
  •   Finally, tropical storms and hurricanes are deadly serious events--not opportunities to appear on television (for example, the "surfers" that choose to take their boards into waters when riptide warnings are issued or the "thrill seekers" that feel the need to drive through flooded streets).   When a ROC is threatened by a tropical storm or hurricane, every resident must be prepared to follow the directives of state and local authorities--including a mandatory evacuation order.   As I've mentioned in other entries, "mandatory" means just that.  The failure or refusal to obey a mandatory evacuation order violates state law, and, unless the community's clubhouse is a certified shelter, a resident cannot and should not simply "camp out" in that clubhouse when the evacuation order is issued.

This is the earliest date that we've had a fourth named tropical system in the Atlantic.  Whether or not this signals an extremely active hurricane season this year is unclear.  What is clear is that knowledge, preparation, and common sense in dealing with tropical storms and hurricanes can help spell the difference for ROC managers, board members, and homeowners.

Let's hope that Debby is our only tropical "visitor" this season--but let's be ready just in case!!

FEMA's Flood Insurance Decision Hurts ROCs

Yesterday's edition of the South Florida Sun-Sentinel featured a column by Donna DiMaggio Berger, the executive director of the Community Advocacy Network and a partner in the Katzman, Garfinkel and Berger law firm.

In what Ms. Berger calls an "unprecedented move,"  The Federal Emergency Management Agency  recently announced that it would end a six year old program that allowed agents writing national flood insurance policies to rebate a portion of their commission to their customers.

Ms. Berger notes that these rebates have been allowed by statute in Florida since 1996 and correctly questions why, in the midst of difficult economic times, FEMA has chosen to "effectively take millions of dollars in flood-insurance savings" out of the pockets of Florida homeowners and the communities in which they reside.

According to Ms. Berger, over two million flood insurance policies are written in Florida.  Most of those policies cover homes in flood prone areas such as our coastline and the counties south of Lake Okeechobee, where more than eight million of us live.

The column includes a link to a petition urging FEMA to reconsider and reverse its decision before October 1 of this year, which is the date that the rebate program is scheduled to end.

With our hurricane season just beginning to brew, I'd suggest that NOW would be a very good time to sign this petition.

Please forward this entry and the link to the petition to your neighbors and other homeowners in your communities.

ADA Pool Accessibility FAQs and An ABA Forum

Carol Grondzik,one of my colleagues in our firm's Tallahassee office, just forwarded a link that answers many frequently asked questions about the pool accessibility requirements of the Americans with Disabilities Act.   As I mentioned in one of my earlier blog entries this year, those requirements were set to go into effect in March but have been delayed until at least May 21.  I hope the followers of my blog find this link helpful and informative.  As always, I suggest that ROC managers and board members obtain professional guidance in determining whether their community's facilities must comply with any of these accessibility requirements and if so what type of equipment will satisfy the ADA standards.

I'm very excited to be spending a few days later this month in Washington, DC at the American Bar Association's Forum on Affordable Housing and Community Development Law.  I've been invited to be one of the panelists speaking about Cooperatives as a Tool for Housing and Social Enterprise.  I'll also have the opportunity to attend workshops and seminars on Fair Housing and other issues affecting resident owned communities.  The Forum is being held from May 23 through May 25 and I'm sure I'll be posting entries on this event on my return.

 

 

 

 

ROCs and the Trayvon MartinTragedy

I wanted to post two recent  articles related to the death of Trayvon Martin.

The first discusses the potential liability facing the Retreat at Twin Lakes Homeowners' Association as Trayvon was apparently shot and killed by a member of that  association's "neighborhood watch" group.

The second release was published by the Community Associations Institute in response to this incident and contains much useful information.

I hope that any community association that has a "neighborhood watch" program or is considering starting a "neighborhood watch" group takes the time to review and carefully digest these two articles and would strongly suggest that ROC managers and board members consult with their attorneys and insurance professionals as part of their decision-making process.

ADA Pool Accessibility Deadline Extended for at Least 60 Days

A set of new regulations created in 2010 under the Americans with Disabilities Act was scheduled to go into effect on March 15, 2012.  Late last week, the deadline for compliance with these regulations was extended for 60 days with the possibility of an additional extension of time to allow for clarification and further discussion of the impact and manner of implementing and complying with these rules.

A portion of these rules created no small amount of uncertainty for ROCs with community pools as these new regulations seemed to require that any "public pool" have at least one (and in some cases two) means of accessibility for persons with physical disabilities. 

What exactly constitutes a "public pool"? 

I'm comfortable with advising the board or manager of a ROC that allows only its residents or the family, tenants, or invited guests to use the pool that the community pool is "residential" or "private" rather than public.

However, pools in communities that host swimming meets open to the public, or communities that are partially or entirely designed for short term occupancy by recreational vehicle owners would appear to fall within the "public" arena and these new accessibility rules would seem to apply. 

I've spoken with several communities that don't know whether or not their pools are "private" or "public" and others that aren't sure of the type of accessibility equipment required and we're hopeful that the additional time will provide all of us with the answers needed to determine whether a community needs to bring its pool into compliance with these new accessibility standards and, if so, what equipment will be allowed to meets these standards.

For now, at least, ROCs that need to comply will have some additional time to do so.

Stay tuned and I hope to see some of you at the Expo in Charlotte County on March 27th!

 

ROCs and the Penn State Scandal

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.

 

ROCs and Employee Headaches

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!

Felines, Muscovies and Bears--OH MY!

Lindsay S. Smith, an attorney in the Denver office of Winzenburg, Leff, Purvis and Payne, recently posted a great entry on her firm's Colorado Home Owners Association Law blog.  As you'll see from her article, Florida ROCs aren't the only ones with residents that take it upon themselves to "befriend" and feed wild animals--in this case,stray and feral cats.  Unfortunately for the homeowners in this particular community, its association had allowed the resident to feed these feral cats for a number of years before filing a lawsuit against that resident--and, because of the association's delay in taking action, the court held that the association could not stop the offending homeowner from continuing to feed these animals.

I read Ms. Smith's entry several days before my colleague Bill Korp and I had lunch with the managers of two of the ROCs we represent in southwest Florida.  I was thinking about her article when I asked the managers whether there were any problems with wild animals in their communities. 

Each manager had a tale to tell:

  • Muscovy Ducks had made themselves at home in one manager's community in Lee County and the members of this ROC were struggling with how best to deal with these feathered interlopers.  I did some internet research when I returned to the office and found that Lee County has a web page devoted to Muscovies.   I would not be surprised if at least a few other counties in our state have similar websites.
  • Ducks are one thing--but the black bear that was captured in the other manager's community in East Naples was quite another.  It's worth following this link to read the news article (which has a picture of the bear).   The story doesn't end with the bear's removal from the community.   The manager told us that, even though the bear was relocated to a state park, it made its way back to his community.  The bear was last seen in this ROC in late July and has obviously caused more than a bit of unwelcome excitement for this manager and the homeowners.

As if managers and board members needed any more reasons to tell homeowners and their guests:  "Please, don't feed the animals!"

Let's hope that wild beasts and hurricanes stay far away from our ROCs this year!

 

 

 

Fido, Foreclosures, and Florida versus the Feds

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.

 

 

Update on House Bill 849

One of my recent blog entries discussed House Bill 849, a welcome product of Florida's 2011 legislative session.  House Bill 849 created new Florida Statute Section 514.0315, which  gives pool owners the option of installing any of five different types of equipment in order to meet the requirements of the Virginia Graeme Baker Act.

The legislature forwarded this bill to Florida's Governor for approval and our Governor signed 849 into law on Friday, June 24.

The provisions of this new law  will become effective on July 1, 2011.

"Emergency" Board Meetings Require Real Emergencies

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.

 

 

 

A Plea for Civility

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.

 

 

The DBPR, ROCs, and "Nuisances"

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. 

Golf Carts, Storm Surge, and a Divided Mobile Home Community

I'm posting links for my blog readers to two articles from last Sunday's Sarasota Herald -Tribune and a story that was summarized in a recent edition of the Florida Manufactured Housing Association's newsletter.

  • The first article from the Herald-Tribune focuses on the tragic consequences of an accident involving a golf cart.  I've covered this topic in the past but I remain very concerned that many residents in the communities we work with still do not understand that golf carts are vehicles and not toys
  • With one hurricane (and the third named storm) spinning in the Eastern Pacific and several systems having already been investigated in the Atlantic, the second article in Sunday's Herald-Tribune is extremely timely.   It details the devastating effects of storm surge, which causes more deaths than any other feature of a hurricane.
  • The battle being fought between neighbors at the Americana Cove manufactured housing community in Pinellas County is the subject of the third article from the St. Petersburg Times.   We've spoken at our seminars on many occasions about the issues facing the residents at Americana and there are no easy answers in this situation.

We'll get back to discussing how Senate Bill 1196 will impact resident-owned communities in my next entry.    In the meantime, I hope you find these articles interesting and informative.

ROCs Should Prepare for an Active Hurricane Season

The National Oceanic and Atmospheric Administration (NOAA) just issued its predictions for the upcoming hurricane season, which begins June 1.

If NOAA's forecast is correct, we'll have a very busy summer tracking storms in the Gulf and the Atlantic:

According to NOAA, there is a seventy per cent chance of the following:

  • 14 to 23 named storms (either tropical storms with top winds of at least 39 miles per hour or hurricanes)
  • 8 to 14 of those storms will reach hurricane status (with top winds of at least 74 miles per hour)
  • Of those 8 to 14 hurricanes, 3 to 7 will become major hurricanes (with top winds of at least 111 miles per hour)

I've posted on hurricane preparedness before but this is certainly a good time for ROC managers and board members to review their existing hurricane preparedness plans and to remind their residents (snowbirds and full-timers alike) of a few important points:

  • Residents should not wait until the last minute to evacuate their communities--especially those in need of special care or with pets
  • Do not leave lawn chairs, tables, etc. outside when a storm is on the way.  Anything that can become a projectile should be brought inside or be otherwise safely secured.
  • A mandatory evacuation order means just that: evacuate your community.  Unless your clubhouse is a Red Cross certified storm shelter, it should not in any event be used to "ride out" the storm.
  • Make sure all contact information for residents is readily available
  • Appoint one or two "full time"residents (not the manager) to serve as the "information centers" in the event that a storm hits the community.  All residents should be advised to contact these residents rather than the manager or other board members for updates on conditions at the community.   The manager and the other board members will have their hands full in dealing with the challenges facing any community in the aftermath of a storm.

We all hope that this hurricane season will be as quiet and uneventful as last year's but, as always, taking the proper steps to prepare for the worst is the best course of action for managers, board members and residents in our communities. 

 

 

 

Continue Reading...

Two Important Safety Concerns for ROCs

I want to bring two recent items to the attention of my blog readers.   I've touched on one of the items in a past entry and thought the other item was extremely important.

I've covered the issues raised by golf carts in resident-owned communities in an earlier post.   As those of you that attended our most recent ROC seminar presentations know, golf cart owners may be unpleasantly surprised to discover that their automobile insurance does not cover injuries or damages caused by or to their golf carts.   My earlier post dealt with safety issues and stressed that ROC boards and managers should remind the residents in their communities that golf carts must not be treated as toys and must be used with great care.

I was saddened, but not surprised, to hear that a six year old child in the Lakeland area died this week as a result of injuries she suffered in a golf cart accident.  It might not be a bad idea to post one of the news reports about this tragic death on the bulletin board in your community to remind all residents that great care must always be used in operating golf carts.

I have to confess that I've never watched Oprah Winfrey's show.  However, she wrote a short piece that appeared in last Sunday's edition of the New York Times and I highly recommend that this column also be posted on the community bulletin board.   I intend to explore how ROC boards, managers (and their attorneys) are all feeling the stress of having to instantly respond to complaints and concerns of residents in a future entry.   For the time being, however, I suggest that we all consider Ms. Winfrey's message about the dangers of  "multi-tasking"--especially texting and using our cell phones while driving--a well-intentioned warning to concentrate on the most important task at hand when driving--whether that be a golf cart, sports car, or mini-van. 

That task, of course, is to arrive safely at our destination--whether around the corner or on the other side of the country.

As I post this entry, Senate Bill 1196 has been approved by both houses of the Florida Legislature and has been sent to the Governor for his signature.  I'll let you know if and when he signs the bill and what that means for ROCs in future blog entries.

"Low-Rise" ROCs Can Waive Requirements to Retrofit for Handrails and Sprinkler Systems

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".  

 

 

ROC Board Members and Managers Cannot (and Should Not) Do Everything

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.

 

ROCs and the Africanized Honey Bee (aka the "Killer Bee")

I had an interesting discussion about bees with a ROC manager last month while visiting one of the communities we represent in Manatee County.   The manager had attended a presentation on the "Africanized Honey Bee" (also referred to as the "Killer Bee"), a much nastier and far more dangerous "cousin" of the European Honey Bees that have lived in Florida for many years.   Unfortunately, the Africanized Honey Bee has now infiltrated almost all of the east coast of Florida from Palm Beach County south.   The most heavily populated areas for these "killer bees" on Florida's west coast are currently Hillsborough, Pinellas and Lee Counties with a smaller population being found in Sarasota and Manatee Counties.  It's predicted that within the next five to ten years Africanized Honey Bees will have spread throughout the entire area of the state south of Interstate 4.

Here are just a few of the more sobering aspects of the invasion of these "killer bees":

  • European Honey Bees will send out a few bees that may only hit a person that approaches their hive as a warning if these bees feel threatened.   These bees may swarm and sting if they still feel threatened.   However, the Africanized Honey Bee may feel threatened if a person gets within 150 yards of their hive--and, while they may only send out a few bees to investigate, if they still feel threatened (and remember, this may be at a distance of more than a football field from the hive!), the person may find himself under attack by at least one-third of the hive--or a minimum of 1,000 bees.
  • Any general commotion (such as lawn mowers or edgers, radios, sirens, loud talking,  or children playing) may be viewed as a threat to the hive and once the "killer bees" begin their attack, unless and until the perceived "threat" gets at least 300 yards away from the hive, the attack will continue. If the victim dives into a pool or other body of water to escape the attack, the bees will simply wait for the victim to come up for air and start stinging again, even though a bee will die approximately sixty seconds after stinging its victim.
  • These bees can fly at a speed of approximately 12 miles per hour, which is faster than most children or seniors can run.   If a victim is able to take cover in a car, home, shed, or other shelter, the bees may, again, simply wait for the victim to leave that protected area to recommence the attack and the hive may not return to normal for approximately twenty-four hours after the "killer bees" first perceive the threat.

The community's manager referred me to the University of Florida's Africanized Honey Bee website and I'd suggest that ROC managers and board members visit this site as it contains additional important information.

An attack by what might very well have been a swarm of these "killer bees" was brought to my attention by the manager of a community in Lee County during my visit there earlier this month.   Check out the article from the Fort Myers News Press and in particular the victim's unsuccessful attempt to escape the bees by diving into a body of water as well as an ingenious approach to solving the Africanized Honey Bee problem.

Apparently, these bees prefer to build their hives under mobile homes (obviously an unfortunate choice for many ROCs), temporary buildings, live and dead trees, logs, certain pieces of playground equipment, holes, bird houses, abandoned vehicles, eaves and soffit areas of homes and even in patio furniture.  Hives can reach five to ten gallons in size and potential victims obviously include lawn crews and landscapers, but these "killer bees" may view any person or pet coming too close to their hive as a threat.

If a hive of bees is discovered in your community, I'd suggest that the ROC manager or an authorized board member contact a pest control company trained to handle bee removal and let the experts (not the board or the manager or one of the community volunteers) get rid of the hive and the bees.   

How can ROCs help prevent golf cart accidents?

I've received two calls this month about golf cart accidents in resident owned communities.             

The first call was from a resident who had been given my name at the office at one of the ROCs we represent.   This resident told me that he was attending a private function in the ROC's clubhouse and drove his golf cart to that event.   He parked the cart by the clubhouse but left his keys in the cart--and, while he was in the clubhouse, another resident's grandson started the cart and ran into another child.   According to the caller, he didn't think the child's injuries were severe, but was nonetheless concerned about his potential liability.   I advised him that, because our firm represented the ROC, I could only suggest that he find another attorney and contact his insurance carrier.  I then contacted the ROC's manager to confirm that the event was not sponsored by the ROC and suggested that the ROC advise its insurance agent about the incident just to be safe.

The second call was from several officers of another ROC I've worked with for almost fifteen years.  The ROC's President was clearly upset as he told me that one of the community's residents had been killed and several others injured the day before in a golf cart accident.  This horrible incident occurred in the community and these officers wondered whether it made sense for the board to pass a rule requiring that all residents with golf carts provide the ROC office with proof of insurance covering their carts.  While I advised these officers that such a rule might create more problems than solutions for their community (for reasons I'll explain in an entry within the next few weeks), I told them  to immediately contact the ROC's insurance agent about the accident, even though the golf cart was not owned by the ROC nor driven by either a member of the ROC board or an employee of the ROC.

Golf carts function as "second cars" for many residents in ROCs and it's common to see drivers of almost all ages seated behind the steering wheel of these vehicles.   We tend to forget that golf carts are not "toys" and that severe injury or death can result from golf cart accidents.   I found an  entry in another Florida law blog that focused on the increase in golf cart accidents over the past few years and I recommend it to ROC managers and board members.

What can ROC managers and board members do to minimize the chances of golf cart accidents in their communities?  

Here are a few suggestions:

  • Is your insurance agent able to speak about golf cart safety?  How about someone from your local law enforcement agency?   If so, invite them to speak at one of your community's regular coffees or other well-attended social events.
  • If your community doesn't already have rules prohibiting children driving golf carts, or at least requiring an adult to be in the cart with them when they are driving and prohibiting children under a certain age from driving carts, consider passing such a rule or revising your current rules if needed.   Note that Florida's statute  governing the operation of golf carts provides that a person must be at least 14 years old to operate a golf cart on a "public road or street" and that local municipalities are permitted to pass laws governing the operation of golf carts that are more restrictive than the state's requirements.
  • Rules can also be amended or added to encourage all golf cart owners to obtain and maintain golf cart insurance.
  • ROCs should also consider requiring golf cart owners to register their carts with the office, obey posted speed limits, and remove the keys from the cart when the cart is parked or otherwise not in use.
  • Finally, I'd suggest posting this entry and the other blog entry I mentioned above on the community bulletin board and keeping the entries there for the next few months so your "snowbirds" can read them when they return.

Any golf cart accident, particularly one that causes injury or death, is one too many.  Let's all do our best to educate ROC members and guests that golf carts are not "toys" and must be operated properly and safely.