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How many times have you heard the old axiom, “ignorance of the law is no excuse”? Well, it’s never more true than in the Fair Housing Act (FHA) reasonable accommodation request for an “emotional support animal” arena.

In a 2012 Fourth District Court of Appeal case, Sun Harbor Homeowners’ Association, Inc. v. Bonura, the homeowners’ association brought an action against a homeowner for violation of it’s no dog policy. As could be expected, the homeowner counterclaimed asserting that his live-in fiancée was entitled to the use of an “emotional therapy dog” (referred to by HUD as an “assistance animal/emotional support animal”).

Initially, the association demanded removal of Bonura’s fiancée’s dog due to the association’s no dog policy. In response, Bonura demanded an accommodation and informed the association that the dog was a “registered service dog” needed to assist his fiancée with her disability. Bonura did not provide any specificity as to the nature of the disability, but however, provided a “Registered Service Dog Certificate” purchased from an online vendor. In response, the association advised him, in writing, that he needed to have his request for accommodation placed on the association’s agenda for the next board meeting at which he would need to:

“1) demonstrate that a resident suffers from a medical disability or handicap, unless the disability or handicap was visible, and indicating that any written information provided by the resident would not be copied or shared and would be returned after viewing;

2) demonstrate how the service animal [sic] can or will reasonably accommodate the disability;

3) demonstrate that the service animal [sic] has special skills or training to accommodate the handicap; and

4) demonstrate how the special skills and in training of the service animal [sic] and will set it apart from an ordinary pet.”

To make a long story short, the Court ruled in favor of the association, and in so doing noted that Bonura never requested to be placed on the association’s agenda and that Bonura did not provide the necessary information for the association to conduct a meaningful review of the request for the accommodation.

If this case had been recently filed and had Bonura minimally alleged that the need for the assistance animal was related to his fiancée’s emotional disability, the outcome would likely have been drastically different. Here is why: On April 25, 2013 the U.S. Department of Housing and Urban Development (HUD), issued a Fair Housing Equal Opportunity Notice, FHEO – 2013–01 (“FHEO Notice”) and provided significant clarity as to Americans with Disabilities Act (ADA) “service animals” as compared against FHA “assistance animals” (and it’s subset classification of “emotional support animals”). First and foremost, the ADA applies to places of public accommodation. The FHA applies to housing providers, such as community associations. There can be some interplay between the ADA and the FHA such as a community association that allows it’s clubhouse to be rented out to the general public. The term “service animals” only refers to dogs (or miniature horses) and applies to the ADA, which as of this recent FHEO Notice, specifically excludes “emotional support animals.” In short, the practical application of excluding “emotional support animals” from the definition of “service animal,” means that a public facility does not need to permit “emotional support animals.” In any event, FHA “emotional support animals” do not require any specific training or certification whatsoever. Therefore, by asking whether the fiancée’s animal had special skills or training to accommodate the disability and how the special skills and training which set the animal apart from an ordinary pet would likely have cost the association thousands, if not hundreds of thousands of dollars, in penalties.

According to the FHEO Notice, after a housing provider receives a request for an assistance animal, the housing provider must consider: 1) does the person seeking to use and live with the animal have a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities? and 2) does the person making the request have a disability-related need for an assistance animal? In other words does the animal work, provide assistance, perform tasks or services for the benefit of the person with the disability or provide emotional support that alleviates one or more of the identified symptoms or effects of the persons existing disability?

Remember, breed, size and weight limitations may not be applied to an assistance animal. While an association may require a pet deposit, the association may not require deposits for assistance animals. Furthermore, again according to the FHEO Notice, the assistance animal is allowed in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s (the association’s) services.

Finally, remember that if the assistance animal in question poses a direct threat of harm to others or would cause substantial damage to the property of others, based on objective evidence and not mere speculation or fear, then that specific animal may be prohibited.

Wait until you read Florida House Bill 849, which is gaining traction in the legislature. Rather than use the FHA and ADA definitions, this legislation confuses the term “service animal” to also include “assistance animals” with the exception of an “emotional support animal” that, at least in this bill, stands on its own.

On March 13, 2014, the United States District Court for the Southern District of Florida entered its 33 page Omnibus Order in Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fisher, et al. The term “Omnibus” was used in the title of this order to reflect the myriad of issues addressed by the Court. The Sabal Palm opinion addresses a disabled owner’s request for an assistance animal trained to alleviate problems caused by the owner’s multiple sclerosis. In this case, Fisher’s (the unit owner) request for an assistance animal was related to an observable disability where copious information was provided to Sabal Palm at its request to substantiate the need for the assistance animal. Rather than grant the reasonable accommodation, Sabal Palm sued Fisher for declaratory judgment to have the trial court determine whether Sabal Palm was required to grant the reasonable accommodation and to decide the extent of the medical records that it was entitled to receive. In response, Fisher counterclaimed against Sabal Palm alleging discrimination and also sued the president in his PERSONAL capacity. Thereafter, motions to dismiss were served. Attention is now turned to the instructional value of this resulting Omnibus Order.

First and foremost, the Court recognized that when it comes to emotional support assistance animal requests there is plenty of abuse being suffered by housing providers. The Court even sites to a report “prepared for a Senate Informational Hearing on the subject of fake service [sic, assistance] dogs” and acknowledges that this is a growing problem. The Court even went so far as to state that “there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support.” However, Sabal Palm treated Fisher with unjustifiable skepticism when it decided to file the lawsuit for declaratory judgment against her. By that time, the Court seems to have concluded, that Sabal Palm should have granted the request for the accommodation based on all of the information in Sabal Palm’s possession.

Lessons to be learned from this case include:

1) A board member can be sued in their personal capacity for a violation under the Fair Housing Act (“FHA”) where the board member acted recklessly, in bad faith, or with wanton and willful disregard to human rights. (So, while the Court allowed Fisher’s cause of action against the president, in his personal capacity, it is not yet known whether the president will be found liable. Rather, the Court merely perfected the cause of action and in so doing, did not dismiss the claim.)

2) In examining these types of discrimination cases, the Court referred to another seminal case, Oberbrook, where that court looked at three factors to analyze: i) the extent of housing providers delay and obstruction of the request by the filing of a lawsuit by the housing provider, ii) the state of the law at the time the lawsuit was filed, and iii) whether the housing provider’s delay in granting the accommodation request had the effect of depriving the disabled person their requested accommodation.

3) In response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that i) is necessary to verify the person meets the FHA’s definition of disability, ii) describes the need for the accommodation, and iii) shows the relationship between the person’s disability and the need for the requested accommodation.

4) When the disability is readily apparent, the housing provider may not request additional information about the requestor’s disability. When the disability is not obvious, the housing provider may request more information limited to precisely what is not obvious.

5) A request for a reasonable accommodation can be constructively denied based on delay in rendering the decision.

6) Punitive damages are available under the FHA for a “refusal to accommodate” claim if a court finds that a discriminatory housing practice has occurred or is about to occur.

In the Sabal Palm case, it was found that Sabal Palm had more than enough information to conclude that Fisher was entitled to the requested accommodation. Yet, Sabal Palm requested even more information. The Court also found that the FHA’s Joint Statements (where the interpretation of the FHA of both the Department of Housing and Urban Development and the Department of Justice can be found) did not support Sabal Palm’s decision to sue for a declaratory judgment. Likely, this was due to the fact that the Court believed Fisher had more than met her burden to substantiate her disability and her need for the assistance animal.

This year’s legislative session begins on March 4, 2014 and ends on May 31, 2014. If you think all of the “bills” are drafted during the 60 day legislative session, think again. January 24, 2014 was the deadline for submitting requests for drafts of general bills, including requests for companion bills, and February 28, 2014 at 5:00 P.M. was the deadline for approving final drafts of general bills, including companion bills. After the conclusion of the legislative session, the Governor can veto the bill, do nothing (which allows the bill to become law on its effective date), or sign the bill into law (in which case the bill may spring into law, or will later become law on its effective date, as set out in the bill). If the bill was vetoed by the Governor, then a two-thirds vote in both the Florida Senate and House is required to override it. This year’s legislative session looks to be moderately busy with many proposed community association bills.

Senate Bill 798 (SB 798) includes many changes to existing law. Leasing amendments to a condominium declaration would not apply to those who vote against the amendment, but, obviously, would apply to those who vote in favor of it, and in contrast to today’s legislation, would be applicable to those who do not cast a vote at all. A condominium association would be granted the authority to enter the unit to inspect abandoned units and make certain repairs and even to turn on power to the unit to run the a/c to prevent mold. Provisions are included for the appointment of a receiver to collect rent.

Oddly, SB 798 provides that “a [condominium board] member may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.” Likely, this provision was created with the best of intent, but hopefully will be deleted or tweaked to make better sense. At present, board members cannot vote by e-mail, but sometimes in a true post-casualty emergency, e-mail may be the viable means of communication for some board members. It is also patently obvious that everyone, even board members, may use e-mail to communicate. The question is whether such communication by the board majority constitutes a board meeting. Of course, SB 798 does not grapple with that important and very relevant issue. It’s early in the session, so let us all hope this provision gets eliminated, or edited, to be of greater value. On the brighter side, SB 798 also allows board members to vote via video conferencing rather than just on a speakerphone, as presently exists.

Clarification is added to foreclosure legislation affecting condominium, cooperative and homeowner associations to provide that a subsequent owner is jointly and severally liable with the previous owner for not only unpaid assessments, but also interest, late fees, reasonable costs and attorney fees incurred by the association incident to the collection process. Further clarification is provided to make clear that, in the event the association owned the unit, the subsequent owner may still have liability for the period prior to the association’s ownership.

Outgoing board members are required to relinquish all association records within 5 days. If not, civil penalties may be incurred. The deadline for financial reporting is increased form 60 days from the conclusion of the fiscal year, to 90 days along with an additional 30 days to provide the report to the owners.

Cooperatives and homeowner associations are granted new emergency powers and many of the bill’s legislative amendments to Chapter 718, Florida Statutes, the “Condominium Act”, would also apply to Chapter 719, Florida Statutes, the “Cooperative Act.”

House Bill 425 (HB 425) makes numerous clarifications to the Condominium Act to clarify many of its provisions apply to residential condominiums only. Obviously, the sponsor of HB 425 is asserting that the scheme for protections and safeguards of unit owners in residential condominiums is not necessary for unit owners of both commercial and condo-hotel ventures. Rather than carve out the parts of the Condominium Act that do not apply, the state would be far better served by a new chapter of laws to govern non-residential condominiums.

House Bill 7037 (HB 7037) addresses community association managers and would, in essence, allow managers to do many activities which are, by today’s standards, considered the practice of law. The type of activities that would not constitute the “unlicensed practice of law” would include, to name a few, calculating the number of votes to adopt an amendment (sometimes, a very complicated task requiring legal interpretation), negotiating contracts regardless of the type of contract, preparing pre-arbitration demands and preparing liens. Ultimately, given the overly broad provision of HB 7037, it could be interpreted to mean the manager is lawfully able to perform all tasks to ensure compliance with the community’s governing documents.

Eight years ago, the Fourth District Court of Appeals held that when a unit owner who was accused of failing to abide by the association’s covenants challenged the association by asserting that the association failed to follow its own covenants (which later formed the basis of the association’s lawsuit against the owner), the association had the burden to prove to the court that it had, in fact, complied with the requirements set out in its own declaration. Interestingly, the unit owner was not required to prove anything. Rather, all that the unit owner had to do was allege that the association failed to comply with its own declaration in the unit owner’s affirmative defenses, set out in the unit owner’s “answer” to the association’s “complaint.”

In this lawsuit, McKenna v. Camino Real Village Association, Inc., 877 So. 2d 900 (Fla. 4th DCA 2004), the association filed a foreclosure action against a unit owner for unpaid assessments. Prior to filing the lawsuit, the association accelerated the remaining assessments due for the budget year. As an affirmative defense, the unit owner alleged that the association failed to comply with its own declaration by failing to provide prior notice to him, as required by the association’s declaration, that the association had accelerated the remaining assessments for the budget year. As a result of the association’s summary judgment motion, the trial court nevertheless granted its verdict in favor of the association.

Later, upon the unit owner’s appellate challenge, the Fourth District Court of Appeals reversed the trial court’s decision. The appellate court held that, once the unit owner filed the affirmative defense asserting the association failed to comply with its own declaration, the association then had the burden to prove that it complied with the requirements of its own declaration. As a result, the case was remanded back to the trial court for additional proceedings.

More recently, in July 2013, the Fourth District Court of Appeals re-visited the issue concerning an association’s burden of proof. In Boyle v. Hernando Beach South Property Owners Association, Inc., Case No. 5D12-2993, the homeowners’ association filed a lawsuit against a member alleging that the member failed to maintain his lot “in a neat, clean and orderly condition” as required by its declaration of covenants, by failing to properly landscape his lot and trim his trees. At summary judgment, the trial court granted an injunction in favor of the association that required the member to comply with the association’s covenants. The member appealed.

Summary judgment motions are ingrained in the rules governing civil procedure. Its purpose is to promote “judicial economy.” In matters where there are no material facts in dispute, the party filing such a motion argues that they are entitled to judgment in their favor as a matter of law. Remember, a jury determines the facts, and the court applies the law.

In reviewing the trial court record, the appellate court noted that the affidavits provided by the association which, like the complaint, alleged the member failed to maintain his lot “in a neat, clean and orderly condition,” failed to demonstrate how the member’s landscaping and trees were not properly maintained. In other words, the association failed to present evidence to the trial court to prove the member had actually failed to maintain his lot “in a neat, clean and orderly condition.” Therefore, the appellate court reversed the trial court’s injunction and remanded (meaning sent it back) the case back to the trial court for further proceedings. It is important to recognize that, while the homeowner may have won a small battle, the actual war is still to be fought… at trial. While the association can learn from the appellate court’s decision by ensuring it submits the, up until now, lacking evidence as a part of its case in chief during trial. However, if, prior to filing the lawsuit, the association never clearly explained to the member how his landscaping and trees were not in compliance, then it’s likely the association is up the proverbial creek without a paddle and without a life-preserver, too.

Community associations are held hostage to rising prices. When prices go up, assessment increases soon follow. The recent postal stamp increases are no exception. The size of your association and amount of mailings during the year can really take a toll on the budget. Why not give your association a quick financial boost by sending electronic notices rather than paying for all those stamps? Electronic notices can be used for all sorts of official notices; however, there are a few prohibitions. In Chapter 718, governing condominium associations, and Chapter 719, governing cooperative associations, the word “electronic”, including variations such as “electronically”, appears 24 times, while in Chapter 720, only 17 times.

Both the Condominium and Cooperative Acts specifically authorize, legalize and legitimize bylaw provisions that provide for giving notice by electronic transmission whether as originally recorded or even by later amendment. The term “electronic transmission” can refer to a facsimile and, just as easily, to an e-mail or any other transmission that, well, simply put, transmits to the intended recipient electronically. (How is that for circular logic?) With that in mind, the clever, cost-conscious association should start to gather its members’ e-mail addresses and consents for the association’s use of e-mail for meeting notices.

E-mail can be utilized for notice of membership meetings, board meetings and even committee meetings. It can be used for election notices, too. In order for an association to notice by e-mail, the association’s bylaws must provide for providing meeting notices electronically and each member must specifically consent, in advance. Take a look at your association’s bylaws to see if your association is already authorized to start gathering its members’ consents to receive e-mail notices. If it is not already there, then talk to your association’s lawyer about amending the bylaws to include this simple cost saving solution and protection against rising postal costs.

Condominium, homeowner and cooperative associations are responsible to maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission.

The e-mail addresses and facsimile numbers of the association’s members are not accessible to the association’s other members if the member whose e-mail address or facsimile address did not consent to receive notice by electronic transmission. The association would be advised to obtain such consent in writing.

The Condominium, Homeowner and Cooperative Association Acts provide that an association may print and distribute to parcel owners a directory containing the name, parcel address and telephone number of each parcel owner and that any owner can exclude his or her telephone number from the directory by so requesting, in writing, to the association. Oddly, e-mail addresses are not mentioned which can be remedied through a bylaw amendment that specifically provides that the directory can include e-mail addresses of those members who consent to receive their association notices electronically unless advised, in writing, by the owner, to the contrary.

On the bright side, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

Neither facsimile nor e-mail can be used as a method of giving notice of a recall meeting. In addition, electronic notices cannot be used by condominium associations that previously voted to forego retrofitting, when the unit owners next consider the issue.

To start your savings, check your association’s bylaws for the required authorization and start gathering those e-mail addresses. It’s good for the environment, too!

If you live in Monroe, Miami-Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, Okeechobee or Highlands County, then you will want to know about the January 3, 2014 decision entered by the United States District Court for the Southern District of Florida (the “Court”). For that matter, if you live in an association somewhere in the great State of Florida, then you still need to know about this case: United States v. Forest Hill Condo Association and Forest Hill Property Owners’ Association, where the Court examined the financial obligation of a foreclosing first mortgagee to a condominium association and homeowners’ association (the “POA”) when the unit owner not only defaulted on their mortgage but also failed to pay assessments. The dispute came about when after taking title as a result of the lender’s foreclosure, the U.S. Department of Housing and Urban Development (“HUD”), as a successor and assignee to the foreclosing lender, requested an estoppel from both of the associations.

Both associations claimed the HUD was liable for all unpaid assessments, together with other fees and charges, including attorney’s fees, levied against the unit in the twelve-month period prior to foreclosure. HUD, on the other hand, contended it was entitled to the protection of a statutorily-created “safe harbor” which limits its liability. It actually fared better, at least as to how much it owed the condominium association for back assessments.

The Court examined whether interest, late fees, collection costs and attorney’s fees were properly included in both associations’ estoppels. The Court concluded that the answer was “no”. The Court reasoned that since assessments are common expenses shared amongst all of the owners and that since the interest, late fees, collection costs and attorney’s fees are assessments levied against an individual as opposed to all of the owners, such individual assessments are not collectable under the “safe harbor” laws.

While HUD was found liable to the POA for back assessments, astoundingly, and to the extreme detriment of the condominium association, the Court took an unexpected left turn when it held that HUD had no liability to the condominium association for any of the past due unpaid assessments that accrued prior to taking title. In reaching this decision, the Court also looked to the condominium association’s declaration and noted that its clear provisions provided that a foreclosing lender had no assessment liability whatsoever, as compared against the legislative requirements set out in section 718.116, Florida Statutes, referred to as the “safe harbor”. The term “safe harbor” refers to the foreclosing lender’s liability to the association for back assessments where the lender, as the prior first mortgagee, is responsible to pay the association the lesser of 12 months’ back assessments or one percent of the initial mortgage. The Court also noted that the condominium’s declaration made it clear that, where permitted, the provisions of the declaration were paramount to the provisions of Chapter 718, Florida Statutes, commonly referred to as the Condominium Act.

What the Court did not discuss was that the initial safe harbor statute contained in the Condominium Act provided that it applied to first mortgages recorded after April 1, 1992. While this language was later removed, it was clear that the safe harbor provisions applied if the owner’s mortgage was entered into after this date. These safe harbor provisions create a procedural regime where lenders can estimate their financial liability in the event of foreclosure which, at least as to this condominium association, some might argue, the court completely ignored!
It will be interesting to see whether other courts follow along and apply this case’s holding. With regard to this decision’s precedential value, based on a legal doctrine called “stare decisis”, the decision of the Southern District Court in this case is merely persuasive authority, meaning that other courts do not have to follow the decision of this case but may take it into consideration. With the exception of the U.S. Supreme Court, no state court is bound by a federal court’s determination regarding state law. In fact, federal courts must follow state courts when analyzing state laws as state courts are the bodies charged with interpreting and applying state laws.

This latest case should be a call to action for all community association board members to contact their legislators and insist that they clarify the safe harbor provisions in this year’s legislation so that the safe harbor laws apply to all lenders!

Who is entitled to the e-mail addresses of your association’s members? Are e-mails sent between board members part of an association’s official records? What about e-mails sent by a board member to the manager?

Only the e-mail addresses of unit owners who have either consented to receive notice by e-mail or have consented in writing to the disclosure of their e-mail addresses are subject to review during an official record inspection. Section 718.111(12), Florida Statutes, provides, with regard to unit owner e-mail addresses, that “[t]he association shall also maintain the electronic mailing addresses… of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses… are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with [this subsection].” This topic was discussed in Cohen v. Harbour House (Bal Harbour) Condominium Association, Inc., Arb. Case No. 2012-02-3139 (Summary Final Order / Lang / June 29, 2012).

In the Cohen case, a unit owner requested a list of all of the e-mail addresses of the members, however did not receive such a list. The unit owner alleged that she was improperly denied the e-mail addresses. However, it was discovered that the association did not have consent from any members to use their e-mail for the purposes of receiving official notices nor did the association have written consent to disclose the protected information from any member. Therefore, the arbitrator held that “[b]ecause, under the statute, no unit owner has submitted his or her email address for notice requirements or consented in writing to disclosure of his or her email address, the [a]ssociation did not improperly deny access by [the unit owner] to its list of email addresses.”

In today’s instant world, e-mail allows us to express our thoughts at anytime, anywhere. It is so convenient that it is unavoidable for board members to use it to discuss association business. As the official records of condominium, homeowner and cooperative associations are subject to inspection with limited exception, the question often asked is whether e-mails, including e-mails between board members and between one or more board members and the association’s manager, constitute part of the association’s official records that are subject to inspection by the members.

Several categories of records, while still constituting a part of the official records, are not subject to a member’s inspection request. For example, attorney-client privileged correspondence, medical records, information obtained by an association in connection with the approval of the lease, sale or other transfer of a unit and social security numbers, just to name a few, are not subject to a member’s inspection request but still constitute a part of the association’s official records.

On March 6 2002, the then Chief Assistant General Counsel of the Department of Business and Professional Regulation (“DBPR”) issued an opinion which provided that “[c]ondominium owners do have the right to inspect e-mail correspondences between the board of directors and the property manager as long as the correspondence is related to the operation of the association and does not fall within the… statutorily protected exceptions… [The DBPR does not have] regulations expressly requiring archiving e-mails, but… if the e-mail correspondence relates to the operation of the association property, it is required to be maintained by the association, whether on paper or electronically, under chapter 718, Florida Statutes.”

In Humphrey v. Carriage Park Condominium Association, Inc., Arb. Case No. 2008-04-0230 (Final Order / Campbell / March 30, 2009), an arbitrator of the Division of Florida Condominiums, Timeshares, and Mobile Homes held that “…e-mails… existing… on the personal computers of individual directors… are not official records of the association… Even if directors communicate among themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an e-mail to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association.” The arbitrator reasoned that “[t]his must be so because there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them.”

Simply stated, if one was to rely on the guidance cited herein, e-mails solely between board members, even a board majority, are not part of the official records, e-mails between the board and the manager are part of the official records and unit owner e-mail addresses are only subject to inspection where a unit owner has either consented to receive notice by e-mail or has consented in writing to the disclosure of his/her e-mail address. That having been said, it is in my opinion that e-mail communications that involve a board majority are still subject to the board meeting notice requirements already required by Chapter 718, Florida Statutes, more commonly known as the “Condominium Act”.

For many of us, the cusp of a new year brings a time for reflection and resolution.  New Year’s resolutions come in all shape and sizes. Maybe you want to resolve to eat healthier, save for retirement, take that dream vacation you’ve been dreaming of, or even adopt a new pet to name just a few. But, why stop there? Community associations can make New Year’s resolutions, too.  The board’s adoption of New Years’ resolutions can be a great strategy to get things done. Maybe it’s time to amend and restate the governing documents, adopt new rules, become a 55 and over age restricted community, re-asphalt the roads, vote on installing windstorm protection for the entire condominium building and so much more. A New Year’s resolution is a plan for action (well, it can be anyway).

The New Year is a great time to resolve to stop smoking. Anyone who has quit smoking knows how hard it is to do. But, make no mistake about it, it can be done. There are no words that comfort a recent quitter going through nicotine withdrawal. Quitting smoking is more than just a decision… it’s a process, and the more support a smoker tying to quit can get, the better. Association’s can lend a hand in the process, too, by adopting no-smoking policies. An association can even consider amending its governing documents to prohibit smoking and become a smoke-free community.

The Florida Clean Indoor Air Act, section 386.204, Florida Statutes, already provides a smoking ban for all the indoor common elements such as hallways, entryways and conference rooms. However, smoking in the outside common elements would remain permissible, unless prohibited in the governing documents.

As to prohibiting smoking inside of the privately owned units,  Florida has not yet developed substantial case law on the subject. However, the Florida Supreme Court’s decision in the oft cited Woodside case stands for the proposition that the will of the associations’ members, through adoption of new restrictions, is not only permissible, but is judicially supported, too. So long as that holds true, the only question remaining is whether existing smokers would have a claim for being “grand-fathered.” Clearly, the board should discuss all of the pros and cons of creating a smoke-free community with the association’s lawyer.

In a 2009, Florida Division of Arbitration case, Belleair Palms Terrace Association v. Smalenberger, where a unit owner was alleged to have removed extensive portions of the common element drywall in his unit which facilitated the passage of cigarette smoke into adjoining units, the unit owner was ordered to restore all drywall in his unit and to cease smoking in the unit during the required installation of the drywall.

While County Court cases do not provide precedential value, they can at least provide some limited guidance. In one such Broward County Court Case, Merrill v. Bosser, the court found that excessive smoke gave rise to a claim for trespass.

In Massachusetts, where a resident brought a claim against their neighbor due to the noxious smoke, the court found that the second hand smoke was considered a breach of the “covenant of quiet enjoyment.”

Interestingly, as far back as 2006, a Colorado court ruled in favor of a no smoking amendment to a declaration of condominium. The court found that the passage of the amendment to the Declaration of Covenants, Conditions and Restrictions was proper, reasonable, made in good faith and not arbitrary and capricious. The plaintiffs who challenged the no-smoking ban were not able to establish that the newly adopted no-smoking amendment violated public policy or otherwise abrogated a constitutional right.

Consider taking a few minutes at your next board meeting to adopt a few resolutions for your community.  Then, tell all of the members, and make it happen.  Above all, have a great 2014 and HAPPY NEW YEAR!!!!!

Holiday cheer is in the air. Thanksgiving and Hanukkah have passed. Christmas is almost here. It’s time to decorate. You know what that means, right? Right! It’s time again to re-visit holiday decorations in the context of condominium and homeowners’ associations.  HOAs are indeed fortunate and good tidings are abundant because unless the HOA’s declaration provides to the contrary, the HOA’s board of directors decides matters pertaining to material alterations. Comparatively, for condominium associations, unless their declaration provides to the contrary, seventy-five percent of the members must approve material alterations. So, while an HOA can decorate their common areas to their heart’s content, it’s not always so easy for a condominium association to follow suit. Some condominium associations argue that since day one their holiday decorations are displayed from Thanksgiving through New Years and, therefore, the failure to display the decorations would also be a material alteration upon which a member vote would be required.

While some holiday decorations are of a secular nature, others are clearly religious symbols. A reader once asked, “If our community displays a Christmas tree and menorah, doesn’t the Board have to allow a Nativity scene and the Ten Commandments, too?” Interestingly, the answer is most likely, “no.” This result is due to the United States Supreme Court’s guidance as to which objects are “religious” and which items are not. Christmas trees and menorahs are considered “holiday symbols,” meaning secular. On the other hand, Nativity scenes and the Ten Commandments denote religious symbolism. If the association displays “holiday symbols” then most likely the board would be on solid footing to deny the member’s request. But, if the board is already displaying other religious symbols, then, to avoid a claim of religious discrimination, all members who request displaying their religious symbols should be allowed to do so as well.

In a different case, the United States Supreme Court held that, “the determination of whether decorations are used for religious purposes, turns on whether the viewers would perceive the decoration(s) to be an endorsement or disapproval of individual religious choices.” Thus, the constitutionality of the decoration in question is judged according to the standard of the “reasonable observer.”

Even though Christmas trees once carried religious connotations, the Supreme Court found that a Christmas tree, by itself, is not a religious symbol. “[T]oday [Christmas trees] typify the secular celebration of Christmas,” the Supreme Court said. The Court also noted that numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs and that Christmas trees are widely viewed as the preeminent secular symbol of the Christmas holiday season.

In contrast, the Supreme Court stated that a menorah is a religious symbol that serves to commemorate the miracle of the oil as described in the Talmud.  However, the Court continued that the menorah’s significance is not exclusively religious, as it is the primary visual symbol for a holiday that is both secular and religious.  When placed next to a Christmas tree, the Court found that the overall effect of the display “recognizes that both Christmas and Hanukkah are part of the same winter holiday season, which has attained a secular status in our society.” We learn from their logic that a menorah display, without a Christmas tree nearby, is a religious object, but when displayed together, the menorah is secular.

If a member of your community wants to include their religious symbol in the association’s holiday display, remember to consider the types of symbols already being displayed by the association as compared to the member’s request.  Remember, to avoid claims of religious discrimination, too. Once your community displays a religious symbol, it will need to allow other requested religious symbols. Use the guidance from the Supreme Court’s cases to differentiate between a secular symbol and a religious symbol. The rules of kindergarten work best: treat everyone fairly and treat them as you would want to be treated. In the meantime, please pass the latkes and eggnog.

HAPPY HOLIDAYS!

If you live in a community association, and most especially if you serve on the board of directors, you must have a basic understanding of Federal laws that provide certain established rights to persons with disabilities. These laws require housing providers, which includes community associations, to make reasonable accommodations for persons with disabilities. A reasonable accommodation is a change in rules, policies, practices, or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space. The HUD.gov website explains that “a housing provider should do everything [it] can to assist…” However, this does not include an expectation that the housing provider pay for the requested reasonable accommodation unless the expense is of a de minimis nature.  Reasonable accommodations can be required at all stages of the housing process, and this includes the association’s application process for prospective owners.

The Federal Fair Housing Laws define a person with a disability as “‘[a]ny person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.’ In general, a physical or mental impairment includes hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness [such as depression], AIDS, AIDS Related Complex, and mental retardation that substantially limits one or more major life activities. Major life activities include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.”

Requests for reasonable accommodations can vary greatly. To mention just a few: a request for a professional to “sign” at board meetings for a hearing impaired person, a request for a wheelchair ramp for the clubhouse, a request by a wheelchair bound person for a parking spot by the front door, a request for a hoist to lower and raise a disabled person into the pool, a request for a “service animal” (such as a guide dog for a visually impaired person); and a request for an “assistance animal” (most commonly, the emotional support happy dog (or other animal) for a person suffering from depression.

While future articles will address the similarities and differences between “service animals” and “assistance animals”, today’s focus is on an association’s owner’s reasonable accommodation request for an otherwise prohibited vehicle such as, in this instance, an ambulance converted for private transport. As reported on October 30, 2013 on the HUD.gov website, the Department of Housing and Urban Development announced settlement of a claim against a Las Vegas homeowners’ association where it was alleged the HOA refused to grant a reasonable accommodation to a family who purchased an ambulance to transport their disabled son who could only be transported in a prone (lying down) position:

The U.S. Department of Housing and Urban Development (HUD) announced that a Las Vegas homeowners association, its management company, and the owner of a rental property will pay $65,000 under a Conciliation Agreement resolving allegations that they violated the Fair Housing Act when they refused to grant a family’s request to park in the driveway of its home an ambulance that the family needed to transport its son, who has a disability, to and from medical appointments.

The Fair Housing Act prohibits discrimination based on disability and requires housing providers, including homeowners associations, to make reasonable accommodations in their rules, policies, practices or services when needed to provide persons with disabilities an equal opportunity to use or enjoy a dwelling.

“Homeowners associations must grant reasonable accommodations that enable residents to meet the needs of family members with disabilities,” said Bryan Greene, HUD’s Acting Assistant Secretary for Fair Housing and Equal Opportunity. “Homeowners associations have the same responsibility as housing providers to follow fair housing laws.”

The family filed a complaint with HUD alleging that, after it purchased an ambulance to transport its son to and from medical appointments, the homeowners association refused to permit the family to park the ambulance in the family’s driveway. The son’s disability makes it necessary to transport him in a prone position. The family alleged that, despite providing the homeowners association with a letter documenting the family’s need for the ambulance, the association and its property management company refused the family’s requests, citing association rules that do not allow residents to park commercial vehicles on their properties.

Under the terms of the conciliation agreement, Harbor Cove Homeowners Association, First Columbia Community Management, Inc., and HAE Investments, LTD, will pay $65,000 to the family and establish a reasonable accommodation policy for future requests. In addition, the parties agree to revise the management practices, rental agreements, and occupancy rules of Harbor Cove Homeowners Association to better accommodate the needs of persons with disabilities.

While there is no doubt as to legitimacy of the aggrieved family’s need for the ambulance to transport their disabled son, these events illustrate two areas of abuse, too. The first type of abuse occurred by the HOA’s board when it denied the requested transport vehicle. The second type of abuse is the type where a 6’4″, 370 pound mammoth of a man named “Bubba”, feigning a disability that was recognized only by a “social worker” with no medical training, makes a reasonable accommodation request for his “dually” truck (those big trucks with 4 rear tires that are great for towing other vehicles) followed by a request for his 7 pound designer malti-poo. Presently, doctors, PHD’s, social workers and other mental health professionals (whoever/whatever they are) can all substantiate the disability. But, until the Federal Laws are amended to require that only doctors and PHD’s are able to substantiate the disability, the potential for abuse will continue, and it may not be too long before “Bubba” lives in your community.

Wishing everyone a joyous Thanksgiving day and for those who celebrate Hanukkah, too, a very happy Thanksgivukkah!