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

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

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

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

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

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

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

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.

 

 

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

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

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

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

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

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

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

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

 

 

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.

Earlier this month, Governor Scott signed into law Chapter 2011-105, the Committee Substitute for Senate Bill 650.

One of the highlights of this Senate Bill is the creation of a new section of Chapter 723, Florida’s statutes governing mobile home park tenancies.

New Florida Statute Section 723.024–Compliance by mobile home park owners and mobile home owners–states as follows:

"Notwithstanding any other provision of this chapter or of any local law, ordinance, or code:

  • (1)  If a unit of local government finds that a violation of a local code or ordinance has occurred, the unit of local government shall cite the responsible party for the violation and enforce the citation under its local code and ordinance enforcement authority.
  • (2)  A lien, penalty, fine, or other administrative or civil proceeding may not be brought against a mobile home owner or mobile home for any duty or responsibility of the mobile home park owner under s. 723.022 or against a mobile home park owner for any duty or responsibility of the mobile home owner under s. 723.023."

Up until now, owners of manufactured housing communities (whether ROCs or third party investors) were often hesitant to contact local authorities to help remedy a home owner’s violation of a local code or ordinance (for example, a health or building code violation) for fear that the local authorities would cite the park owner, rather than the home owner, for the violation.

This new law should eliminate that hesitancy in regards to home owners that are violating local codes or ordinances in resident owned manufactured housing communities. 

It’s clear that this new provision will apply to mobile home owners that are not members of a cooperative, condominium or mandatory homeowners’ association that owns or has the rights and responsibilities of enforcing the rules or covenants governing the community.  

I would also suggest that there are very strong arguments in favor of F.S 723.024 applying to those home owners that are members of the condominium, cooperative, or mandatory homeowners’ association that operates the manufactured housing community.  It’s apparent from the express language of this new section that it is the party that is actually violating the code or ordinance that should be held responsible for that violation.

That’s a welcome clarification for managers and board members in manufactured housing community ROCs and will certainly assist in the enforcement of community rules and regulations.

F.S. 723.024 became effective on the day it was signed by our Governor–June 2, 2011.

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

Ciao!

The recently concluded session of Florida’s legislature resulted in a new section of Chapter 514 of the Florida Statutes that substantially eases the financial burdens that would otherwise be faced by ROCs required to install anti-entrapment devices in community pools and spas as required by the Virginia Graeme Baker Act.

As many ROC managers and board members know, Florida’s Department of Health has taken the position that the only anti-entrapment device that would satisfy its requirements was the gravity drainage system which, unfortunately was by far the most expensive corrective measure.  Many communities were faced with the prospect of having to spend over $25,000 in order to bring pools and spas into compliance with the Department of Health’s standards.

Under proposed Florida Statute section 514.0315, owners of swimming pools and spas that must be brought into compliance by installing an anti-entrapment system or device can install any of the following:

  • A safety vacuum release system that ceases operation of the pump, reverses the circulation flow, or otherwise provides a vacuum release at a suction outlet when a blockage is detected and has been tested by an independent third party and found to conform to certain specified standards
  • A suction-limiting vent system with a tamper-resistant atmospheric opening
  • The gravity drainage system that uses a collector tank (which, again, is the most expensive alternative)
  • An automatic pump shut-off system
  • A device or system that disables the drain

Section 514.0315 clearly specifies that it is the owner of the pool or spa (and not the Department of Health or any other state or local governmental agency) that can determine which of these five anti-entrapment systems or devices is appropriate. 

The anti-entrapment system or device must be installed by a contractor licensed under Florida Statute Section 489.105(3)(j),(k), or (l).

The Florida Manufactured Housing Association testified in favor of this legislation and believes that Section 514.0315, if enacted, will result in substantial savings to the owners of mobile home parks in our state.

It’s anticipated that Governor Scott will have no objection to Section 514.0315 and, if approved, this new provision will become effective on July 1, 2011.

 

 

 

Sawmill Resort and Campground is located near Dade City in Pasco County in west central Florida.   It’s in a very rustic area with about 178 spaces for recreational vehicles, a number of existing cabins and camping sites, a general store, a recreational hall that doubles as a night club, and a pool and poolside bar and cafe’.

Earlier today, Sawmill became the latest resident-owned community in Florida as its homeowners association purchased the community after over nine months of hard work by a group of very dedicated individuals.

The price was $4,200,000 and the seller, TPG Campgrounds, LLC, was very capably represented by Attorney John Fenn Foster of the Foster & Fuchs firm in Jupiter, Florida.  The homeowners association financed the purchase with the welcome assistance of Jeff Campbell at Community Bank & Company, which loaned the association $2,940,00.00 and also helped a number of residents purchase membership shares in the cooperative that will be formed from the homeowners association.   The lender’s legal counsel was Ryan Snyder of the Snyder Law Group.

Bill Gorman and his Lifestyle Choice Realty team guided the Sawmill residents through many twists and turns of this very challenging transaction.   The homeowners association was also greatly assisted by its surveyor, Bobby Simmons of Simmons & Beall, Inc.,  Bill Goulet of Environmental Assessments & Consulting, Inc., Sam Surratt from Lee Reed Insurance, and Bryan Tolli from Evergreen Insurance.

I’m happy to welcome Sawmill as a resident owned community and will be looking forward to getting back to regularly posting entries on my blog.  We’ve got lots to discuss!

 

 

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.