As all Floridians know, our hurricane season doesn’t really get under way until August and we’re currently watching a very large systemTropical 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!

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"!

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.

 

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!!

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.

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.

 

 

 

 

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.

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!

 

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.

 

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!