Florida ROC

ADA Pool Accessibility FAQs and An ABA Forum

Scott Gordon — Mon, 14 May 2012 09:11:17 -0500

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.

Beware of the "Property Deed Solicitation Letter"

Scott Gordon — Wed, 02 May 2012 10:48:56 -0500

The number of schemes out there that seek to part us from our hard earned money continues to amaze me.

Last month, the Manatee County Clerk's Office issued a warning about a "Property Deed Solicitation Letter". Some homeowners in Manatee County, including the Clerk of Court himself, received letters from companies offering to sell them a certified copy of their deed for prices ranging from $50 to $100 per deed. Apparently, these letters periodically appear in that county and are often concentrated in a specific zip code or neighborhood with neighbors often receiving these letters at the same time.

As Manatee County's Clerk stated in his news release, any home owner's deed is a public record and is permanently maintained in the clerk's office of the county where that home or unit is located. You do not have to pay a fee to a private company for a copy.

In Manatee County, any homeowner or unit owner can view and print--at no charge--a non-certified copy of the deed or assignment or memorandum of proprietary lease from the Manatee County website. Many other, if not most counties, in Florida, offer the same service. Residents in counties where this service is not provided merely need to make a trip to their County Clerk's office a pay a few dollars to obtain a copy of their deed, assignment, or memorandum.

It's very rare that a homeowner or unit owner will need either a regular or certified copy of a deed or other document showing ownership of a home or unit--and the cost of obtaining either type of copy should not exceed more than $5 dollars per page.

In the words of Manatee's Clerk of Courts: "While there does not appear to be anything illegal about this offering, it is a totally unnecessary expense for a homeowner to incur."

Thanks to the Manatee County Clerk's Office for its warning and to one of our legal assistants, Karen Midlam, for bringing the news release to my attention.

And if any of my readers receive any of these types of letters, please let me know and I'll spread the word on this blog.

ROCs and Fair Housing "Testers"

Scott Gordon — Sun, 22 Apr 2012 20:38:34 -0500

As many of my readers know, among the topics frequently discussed on this blog are the many issues facing resident owned communities when dealing with the Fair Housing Act.

I've recently been speaking to community association managers and ROC board members about the importance of properly responding to and evaluating requests made by current or prospective residents for reasonable accommodations such as pets or caregivers.

I always begin my presentation with a brief history of the Fair Housing Act and its roots in the Civil Rights movement and the legislation that movement inspired--legislation enacted with the goal of eliminating unlawful discrimination on the basis of characteristics such as race, religion, or disability,

It appears that there is still much to be done before that goal is met. Last Thursday's Sarasota Herald Tribune reported that housing discrimination is still occurring in Sarasota County. Investigators found numerous instances of discrimination against minorities and persons with disabilities in Sarasota, Venice, and North Port as well as in the unincorporated areas of Sarasota County.

The article notes that the investigation was conducted, at least in part, by "testers" posing as as persons seeking housing or financing to help purchase homes.

We've been cautioning ROCs for some time that these "testers" would eventually turn their attention to other areas of our state after focusing on the larger cities on Florida's east coast and the Orlando area.

Managers and board members in resident owned communities clearly have yet another reason to comply with the Fair Housing Laws.

ROCs and the Trayvon MartinTragedy

Scott Gordon — Sat, 31 Mar 2012 14:18:30 -0500

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.

Great Educational Opportunity for Southwest Florida ROCs on March 27

Scott Gordon — Sat, 24 Mar 2012 20:50:52 -0500

I want to remind all of my blog readers that the PM-EXPO Trade Show is scheduled for Tuesday, March 27, at the Charlotte County Convention Center.

This will be a day packed with fun and information with presentations on a number of very interesting topics.

Here's the link to the home page for the Trade Show: www.pm-expo.com/sw-florida/

Admission at the Trade Show is free and so are the presentations, including my presentation that afternoon on dealing with Reasonable Accommodation Requests under the Fair Housing Act.

I hope to see many of our friends from the Southwest Florida at the Trade Show this Tuesday!

ADA Pool Accessibility Deadline Extended for at Least 60 Days

Scott Gordon — Wed, 21 Mar 2012 15:34:19 -0500

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!

The Fate of HB 319 and SB 680 and Continued Confusion for ROCs

Scott Gordon — Wed, 14 Mar 2012 14:45:22 -0500

Florida's state senators and representatives have concluded their 2012 legislative session in Tallahassee.

While House Bill 319 was overwhelmingly approved, Senate Bill 680--the companion to HB 319--never came before the Senate for a vote, thus effectively preventing either of these bills from becoming law.

Whether the failure of either bill to make its way out of this legislative session is good or bad is a matter of opinion.

However, managers and board members in cooperatives should be reminded that, at least for the immediate future, the "status quo" will continue--as will important differences between Florida's statutes governing cooperative associations and those provisions governing condominium associations (and in many cases, the statutes governing mandatory homeowners associations), including the following:

Newly elected or appointed board members in cooperatives are still not subject to the certification/education requirement found in Chapter 718.

The statutes governing cooperative associations continue to have no "safe harbor" provisions for first mortgagees that take title to a unit through foreclosure or assignment in lieu of foreclosure.

Finally, certain privacy protections recently afforded to owners and employees in condominiums and mandatory homeowners associations were once again not extended to members of cooperative associations and the employees in cooperative communities.

I suspect we'll be discussing these issues again at the same time next year.

If you're attending the PM-EXPO on March 27 at the Charlotte County Harbor Event & Conference Center in Punta Gorda, please stop by our booth and say hello to us!

Indianwood Golf & Country Club Joins the ROC Family

Scott Gordon — Thu, 08 Mar 2012 09:17:10 -0500

On February 28 of this year, residents of Indianwood Golf & Country Club purchased their community, with the assistance of Marty Pozgay's Florida Community Services Group.

Indianwood is a 596 space manufactured housing community located in Indiantown, which is located in Martin County, west of Stuart and southeast of Okeechobee. All but 10 of the spaces are currently occupied, and there is an 18 hole par 70 golf course with a pro shop and restaurant.

The resident-owned cooperative association, Indianwood Co-op, Inc., was the purchaser of the community and the sales price was $30,000,000. Financing was provided by Bank of America.

The President of Indianwood Co-op, Inc. is Karlee Shostrom and she and all of the new owners of Indianwood Golf & Country Club are to be congratulated on this exciting accomplishment.

We're very pleased to welcome Indianwood to the ROC family and look forward to hearing more about the newest resident owned community in Florida!

I hope to see some of my blog followers at the Manatee Convention Center in Palmetto on March 8 for the always educational and fun Community Association Day and on March 27 at the Charlotte Harbor Conference Center for the Community Association Trade Show planned by PM-EXPO. I'll be part of a panel of community association attorneys for CA Day and will be speaking about Reasonable Accommodations and the Fair Housing Act at the Charlotte County event.

An Update on the Update--Meanwhile, Over in the Senate

Scott Gordon — Tue, 28 Feb 2012 10:41:11 -0500

Last night's blog entry focused on the most recent version of House Bill 319 and specifically on two revisions--the addition of the "safe harbor" provisions found in Chapters 718 and 720 of the Florida Statutes to F.S. Section 719.108 and the removal of the "certification/education" requirement for newly elected or appointed board members in cooperative associations.

I just checked the Florida Senate's website for the most recent version of SB 680, which is the "companion bill" to HB 319 currently making its way through the Senate's committees in Tallahassee.

Will any followers of this blog be surprised to learn that the current version of SB 680:

Does not add "safe harbor" provisions to F.S. 719.108 and

Includes the "certification/education" requirement for newly elected or appointed board members in cooperatives?

As I posted last night, stay tuned...

An Update on House Bill 319 and Cooperatives

Scott Gordon — Mon, 27 Feb 2012 21:49:56 -0500

As most of the followers of this blog know, Florida's legislature is currently in session in Tallahassee.

The bill that may be of most interest to community association managers, homeowners, and those of us that provide legal assistance and advice to ROCs--House Bill 319--has been making its way through the various legislative committees.

The latest version of this bill--as of the close of business on Monday, February 27--has two very interesting "tweaks" that will impact cooperatives:

First, there is now an amendment to Florida Statute Section 719.108 that will extend the "safe harbor" provisions found in the condominium association and mandatory homeowners' association laws to cooperative associations. These "safe harbor" provisions will limit the liability of a first mortgagee or its successors or assignees who acquire title to a cooperative unit by either foreclosure or by deed (or assignment?) in lieu of foreclosure for the unpaid assessments that became due before the mortgagee's acquisition of title to the lesser of:

the unit's unpaid common expenses and regular periodic or special assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association, or
one percent of the original mortgage debt.

There's been a good deal of controversy and discussion about whether this "safe harbor" prevents an association from trying to recover from the mortgagee other costs and expenses, such as amounts charged the association by law firms or other companies trying to collect the unpaid amounts from the delinquent unit owner. Cooperative associations have, for the most part, not been involved in this battle as no "safe harbor" provisions existed in the statutes governing cooperatives.

A very curious revision in the most recent version of 319 is the removal of the requirement that newly elected or appointed members of the board of directors of cooperative associations either:

sign a document certifying that they have read the association's governing documents and will faithfully abide by those documents and his or her fiduciary responsibilities to the association in serving on the board or
attend and successfully complete a board member certification course that has been approved by Florida's Department of Business and Professional Regulation.

This requirement was incorporated into Chapter 718, which governs condominium associations, several years ago and was in the first version of HB 319 that I reviewed a few months ago. I'm not sure exactly why this latest version of House Bill 319 no longer contains this requirement.

In any event, there's much more to HB 319, and I'll continue to post entries on its progress.

Stay tuned...

Beware of the "Service Dog Scam"

Scott Gordon — Sun, 19 Feb 2012 21:50:59 -0500

It's no secret that the Fair Housing Act prohibits housing providers from discriminating against individuals with disabilities. An community association thus must make a "reasonable accommodation" to a disabled current or prospective resident who requires that accommodation to "use and enjoy a dwelling".

We've recently been contacted about homeowners in resident owned communities claiming that their animals are "service animals". One association is currently dealing with a unit owner who had previously been allowed to have a dog in her home as a reasonable accommodation even though this ROC was a "no pet" community. This unit owner apparently has replaced that dog with another dog and is alleging that this new dog is a "service dog," and can be walked throughout the community, even though the reasonable accommodation granted to the unit owner was conditioned on the dog remaining on the unit owner's lot while in the community.

The unit owner provided the manager with "Service Dog Paper Work" that included an "identification card" for the pet stating "I'm a Service Dog In accordance with the Americans with Disabilities Act of 1990". Another card identified the dog by name, date of birth, registration number, and "handler" (identified by the unit owner's last name).

Becoming a "service animal" requires much more than a few papers, cards, or other items provided by companies gladly accepting the $150 (or more) from pet owners who want to "identify their canine helper" as a "service dog".

Here's what the U.S. Department of Justice has to say about "service animals" as defined by the Americans with Disabilities Act:

Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities--miniature horses are the only other animals that can qualify as "service animals"
Service animals are working animals, not pets
The work or task a dog has been trained to perform must be directly related to the person's disability
Finally, dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the Americans with Disabilities Act

In other words, the documents provided by these companies do not--without more evidence--prove that a pet qualifies as a "service animal".

Florida Statute Section 413.08 defines "service animal" and does not specifically prohibit species other than dogs or miniature ponies from qualifying as "service animals" but does require that the animal be trained to perform tasks for individuals with a disability and also specifies that a service animal is not a pet.

We've determined that the company that provided this unit owner with the "service animal certification kit" for her pet was not affiliated with the U.S. Department of Justice or any governmental agency charged with enforcing the provisions of the Americans with Disabilities Act.

Any association confronted with these "service animal" papers should contact its attorney immediately--and any unit owner that has paid for these documents should strongly consider contacting the Federal Trade Commission.

I'd like to hear from other communities that have been confronted with these "service dog" certification papers.

ROCs and the Komen/Planned Parenthood Controversy

Scott Gordon — Sun, 12 Feb 2012 20:31:16 -0500

Followers of this blog know that I frequently caution that almost all board meetings in resident owned communities must be properly noticed and open to association members. There are specific provisions prohibiting board members from meeting "behind closed doors" in the statutes governing condominium associations, cooperative associations, and mandatory homeowners associations.

While it's clear that these statutory provisions focus on ensuring that association members are provided with adequate notice of matters that are to be considered by the board of directors, there's another very important consideration that can be illustrated by the recent difficulties faced by Susan G. Komen For the Cure after its decision to no longer offer grants to Planned Parenthood for mammograms was made public.

From what I've read about the initial decision, there was little if any input requested from or given by the many local organizations that help fund. Komen . In fact, it appears that some of Komen's board members were unaware of the decision--which had been made in the latter part of 2011.

As everyone knows, once Komen's decision became public, a firestorm of negative publicity erupted--and even though Komen apparently reversed its decision shortly after the media picked up on the story, I have to believe that most of us will no longer view Komen in quite the same way as we did before all of this occurred.

My assumption is that no law prevented Komen's leadership from meeting "behind closed doors" when it concluded that the grants to Planned Parenthood be discontinued. When a board is allowed to isolate itself from its members it's all too easy--and unfortunately all too common--to make decisions in a vacuum that prevents any factors or considerations other than those of the board members from being heard.. If one or two of those board members are particularly overbearing, it's not too much of a stretch to see how a ROC board could find itself regretting a decision made "behind closed doors" once that decision is made public and legitimate concerns of the members are finally heard.

This is a very important "side effect" of the laws requiring open board meetings and member input at those meetings--no "vacuum" can exist if those laws are followed. Every resident owned community benefits when decisions are made only after the members have been given the opportunity to have their say.

I wonder if Komen's leadership wishes it had given its supporters that opportunity before making its initial decision on the grants to Planned Parenthood

Hands Off that Ballot Box!

Scott Gordon — Fri, 27 Jan 2012 17:57:27 -0500

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

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

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

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

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

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

A few more very important points:

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

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

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

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

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

Join us at our next ROC seminars

Scott Gordon — Sat, 14 Jan 2012 21:21:16 -0500

We're only two weeks into 2012 and I've already had the opportunity to make a presentation on conducting elections in community associations for managers and board members on behalf of our local chapter of the Community Associations Institute and speak about the"55 and over" exemption and other Fair Housing issues at this month's meeting of EPROC at the Colony Hills community in Zephyrhills. EPROC has grown tremendously in the two short years since its formation and this is in large part due to the efforts of Rebecca Gaddis, who recently accepted a new position with the San Antonio Citizens Federal Credit Union. Since that's San Antonio, Florida (not Texas), and she'll be based out of Zephyrhills, EPROC will continue to benefit from Rebecca's involvement. It was very encouraging to see so many communities represented at EPROC's January meeting and I'll look forward to returning to their April meeting to moderate a discussion on the various types of community management.

I'm pleased to announce the dates of our next set of seminars for managers and board members in resident owned communities:

Tuesday, January 31 at Village on the Greens in Bradenton (formerly known as El Rancho Village--we had a great time at their very well attended "name change" celebration on January 5th!)
Friday, February 3 at Camp Florida Resort in Lake Placid
Wednesday, February 8 at Bonita Beach Trailer Park in Bonita Springs
Thursday, February 16, at Sandalwood Park in Venice

We'll be covering a number of topics at these seminars, including the following:

What every board member and manager should know about buying, selling, and transferring homes in resident owned communities
Florida-friendly landscaping
Updating the "55 and over" survey in ROCs

As always, we'll discuss any proposed legislation affecting resident owned communities and leave some time for questions and suggested topics for future seminars.

All of these seminars start at 10 a.m. but many attendees arrive a bit early to enjoy the refreshments and meet and greet attendees from other communities. We'll aim for ending these seminars between noon and 12:30.

Please call Karen Midlam or Kathy Sawdo at our office (941-951-1800) or email them at kmidlam@lutzbobo.com or ksawdo@lutzbobo.com to let us know which of these seminars you'll be attending, the number of members from your community that will be attending, and whether you'll need directions to the host community.

There's no charge to attend and enjoy some refreshments and the company of other ROC board members--and pick up some useful information!

I hope to see you at one of these seminars.

A Few Tasty Tidbits for the Holidays

Scott Gordon — Wed, 21 Dec 2011 17:16:56 -0500

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

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

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

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

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

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

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

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

Some Thoughts on a Solemn Day

Scott Gordon — Wed, 07 Dec 2011 14:40:54 -0500

I was born over a decade after the "day that will live in infamy" but it's still hard to believe that seventy years have passed since the attack on Pearl Harbor.

I've been to Hawaii twice and on both occasions (once with my then young children) have visited the Memorial. The power and emotional impact of the Memorial and its surroundings cannot be described. Sites such as Pearl Harbor and the beaches at Normandy instruct all of us in ways that mere words cannot about the sacrifices made by countless young men and women to protect the freedoms we all too often take for granted.

I've opened my most recent seminars with a summary of a very unsettling story that recently appeared on "Sixty Minutes" about families that were forced to live in cars and trucks because they could not afford any other type of shelter. That the families featured in this report lived in the Orlando area was even more distressing.

I'll have yet another upsetting article to discuss at this month's remaining seminars: a report that over 4,500 homes owned by members of our military may have been illegally foreclosed. I hope that this story does not get buried and becomes a primary concern of our legislators and the agencies that we entrust to protect the rights of those that serve to defend our liberty.

Jody Gabel and I have filed numerous eviction or foreclosure actions for the community association we represent and have always taken great care to follow the provisions of the Servicemembers Civil Relief Act. That includes verifying whether or not the homeowners against whom eviction or foreclosure is being sought are currently serving in our military.

Our country's Supreme Court has stated that this Act must be read with "an eye friendly to those who dropped their affairs to answer their country's call."

Given the tremendous price that our servicemen and women pay every day on our behalf and the growing number of homeless families in our country, ensuring that the homes of our fellow citizens serving in the military are protected from wrongful foreclosures and evictions seems to be the least that we can do.

I hope to see many of you at our seminar tomorrow at Venice Isle Estates, next Wednesday at Westwinds in Bradenton, or at my presentation at the SWFROC meeting at Tamiami Village in North Fort Myers on December 21.

Upcoming Educational Opportunities for ROCs

Scott Gordon — Wed, 23 Nov 2011 16:32:39 -0500

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

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

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

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

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

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

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

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

ROCs and the "Gadfly" Board Candidate

Scott Gordon — Wed, 16 Nov 2011 16:08:03 -0500

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

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

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

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

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

Can the association prevent the "gadfly" from campaigning?

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

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

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

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

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

ROCs and the Penn State Scandal

Scott Gordon — Wed, 09 Nov 2011 16:00:29 -0500

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.

If You Don't Pay, You Can't Play (or Vote)!!

Scott Gordon — Wed, 02 Nov 2011 16:52:08 -0500

My last blog entry discussed the rights of an association to assess fines and suspend rights to use facilities in a resident owned cooperative as provided in Florida Statute Section 719.303(3). Both condominium associations (under F.S. Section 718.303(3)) and mandatory homeowners' associations (under F.S. Section 720.305(2)) have similar enforcement tools where a unit owner or parcel owner (or that owner's licensee, invitee or other occupant of the home) fails to follow the association's documents or the reasonable rules governing the community.

What about members of condominium, cooperative, or mandatory homeowners' associations that fail to fulfill their financial obligations to the community?

Board members in condominium associations can look to F.S. Section 718.303(4)-(6), co-op board members can rely on F.S. Section 719.303(4)-(6), and board members in mandatory homeowners' associations have available to them F.S. Section 720.305(3)-(5). Each of these statutes provides that, if a unit owner or parcel owner is more than 90 days delinquent in paying a monetary obligation due to the association, the board may suspend the right of that owner to use common elements, common facilities, or any other association property until the monetary obligation is paid in full. There are several additional points that are very important in regards to the suspension of these use rights:

The suspension applies to both the owner and the unit or parcel's tenant, licensee, invitee, or other occupant of the home
In general, the right to use limited common elements used only by that unit or parcel, common elements needed to access that unit or parcel, utility services provided to that unit or parcel, parking spaces, or elevators cannot be suspended under these provisions of the statutes

In addition, if an owner is more than 90 days delinquent in the payment of any monetary obligation due to the association, the voting rights attributable to that owner or the unit may be suspended, until such time as there is full payment of all obligations currently due or overdue the association.

The suspension of these use and voting rights for failure to timely pay amounts owed to the association may be imposed without the hearing provided for where fines or suspension of use rights are being imposed for failure to abide by the association's governing documents or the community's reasonable rules. All that's required is a properly noticed board meeting (and of course an agenda that clearly notes that the board is going to consider the suspension of the use and/or voting rights) and, once the suspension is approved, notification to the owner (and, if applicable, the occupant, licensee, invitee, or tenant) of the suspension by mail or hand delivery.

These suspensions can occur if an owner fails to pay "any monetary obligation"--not just maintenance fees or other regular assessments, and the notice of the suspension does not appear to have to sent by certified or registered mail.

Clearly, Florida's legislators have given managers and board members in ROCs some ammunition in the ongoing struggle for our communities to maintain financial health.