No Shirts, No Shoes, No Shots- No Service?

Posted on March 21, 2021 by Gerstin

By Joshua Gerstin, Esq.
Click here for .pdf version

As the COVID-19 vaccine rollout begins to spread across the country two opposing sides are emerging, individuals refusing to get vaccinated and others hoping to refuse them service. Board members across Florida are wondering whether their community association can and should require anybody residing in and/or entering their community to be vaccinated. In short, the answer is not clear. Dealing with a novel virus-induced pandemic brings novel legal challenges without clear answers.

According to the Appellate Court in the case of Hidden Harbour Estates, Inc. v. Norman:

“It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub-society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. . .”
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975).

The Hidden Harbour Court went on to hold the test to determine a rule’s validity is “reasonableness”. Only if a board of directors has the power to adopt a rule, the rule is reasonable, and the rule does not conflict with some other right contained in a superior governing document, can the association adopt it. In this instance, rules requiring members to be vaccinated may conflict with the easements granted to owners to enjoy the common areas (a superior governing document). In addition to possibly conflicting with a member’s easement to enjoy the common areas, vaccines are not yet available to everyone and members will present religious and medical accommodations. As anyone dealing with emotional support animals in a no animal environment will readily explain, there are many easy-to-find medical providers ready, willing, and able (for a fee) to attest to an ailment or affliction to assist a member avoid a rule. Despite their often-dubious attestations, requiring a vaccine and refusing an accommodation based on a medical or religious exemption is difficult and expensive for community associations to fight. Adding the proverbial fuel to the fire is Florida’s lack of a Covid-19 vaccine mandate and pending legislation to strip the Florida Department of Health’s authority to implement a COVID-19 vaccine mandate (HB 6003).

Another problematic issue is increased association liability. In addition to the ever-increasing “HIPPA type” liability that comes from storing health records, community associations will be placing themselves as the weak (and liable) link in a chain if an unvaccinated member sneaks in. Further stoking potential community liability is the science (many people seem to ignore), vaccinated people can catch and transmit COVID-19. Community associations promoting the safety of mingling in their clubhouse or similar area with only vaccinated people may find themselves in a lawsuit from a person infected in an area promoted as safe.

What can a community association do?

Although requiring members to be vaccinated may not be the best approach, requiring individuals other than members to be vaccinated may be a position worth exploring. Depending on a community association’s governing documents, passing rules requiring all vendors for the common areas and elements to be vaccinated is a good first step. Association’s that rent clubhouse rooms or common elements (tennis, bocce, pickleball, etc.) to groups in which outsiders are allowed to participate may also want to consider a vaccine requirement for the outsiders. However, for the reasons expressed above related to members, it is doubtful a community association can prohibit an unvaccinated guest of a member who is not part of a member-group renting an area from using the area with a member.

Until the emergency declaration by Governor DeSantis expires, Florida’s community associations will have extended leeway to propose rules limiting the spread of COVID-19. However, an emergency declaration is not going to overcome the multiple religious and medical accommodations that will be presented in response to a vaccine mandate. Combined with potential liability in storing medical records and the implied notion a common area with only vaccinated people will be 100% safe, community associations looking to require vaccinations should look outward towards their groups that rent common areas and vendors. Combined with this outwardly focus should be a relentless effort on behalf of every community association to educate and promote to its members through easy-to-understand and readily available information the use of the COVID-19 vaccine.

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Barbarians at the Pool Gates!

Posted on October 2, 2020 by Gerstin

—Safely Reopening Common Areas

By: Joshua Gerstin, Esq.

Three overriding concerns should be the focus of Florida’s community associations as they face ever-increasing demands from members to reopen their common areas: 1) health, 2) safety, and 3) liability. Operating at warp speed should not be a community association’s re-opening objective. Florida’s community associations should strive for a slow but steady, staggered, and thoughtful re-opening of common areas.

Safety First.

The first step in reopening common elements is for a community association to check with their local governing authorities to determine whether there are any restrictions on opening common areas in their city or county. Although Governor DeSantis entered Florida into Phase 3 of the pandemic, the Governor’s most recent order primarily applies only to businesses. The Governor’s Phase 3 order did not overrule the authority of a county or city from imposing or maintaining its pandemic ordinances pertaining to community associations. If a community association is planning to reopen a common area, it should pass a board resolution and/or emergency rules with procedures mimicking the requirements of Governor DeSantis’s Executive Orders, local orders in your jurisdiction, and health guidelines from the Center for Disease Control (“CDC”).

Mitigating Liability, Second.

The pandemic is endemic and most community association insurance policies do not cover COVID-19/infectious disease transmission. Community associations must strike a balance between reopening common areas and mitigating the liability risk. As part of a community association’s emergency rules authority, requiring members and guests to sign an attorney-drafted release and hold harmless agreement as a pre-condition for using the common areas is a good idea. However, releases and hold harmless agreements will not entirely insulate community associations from being sued and/or exposed to liability. The best way to avoid liability is to not maintain conditions at your community association that contribute to spreading the virus. Therefore, regardless of requiring releases and hold harmless agreements, community associations must strictly adhere to state and local ordinances, as well CDC guidelines.

Sources of Information.

Most community associations will find the following resources helpful as they reopen their community association’s common areas Although the information provided is valuable, please check with your association’s attorney before taking any action.

Community Association’s Institute “guidelines for reopening common areas, amenities, and operations. Modify and adapt a letter, sign, and operational advice to your community” is available at: https://www.caionline.org/pages/coronavirus.aspx

Community Association’s Institute “Healthy Communities guide, a summary of practical advice and best practices from the Centers for Disease Control and Prevention (CDC) relevant to COVID-19 and community associations.” is available at: https://www.caionline.org/pages/coronavirus.aspx

All state and county emergency and executive orders can be found at: https://covid19.lobbytools.com/regions

Center for Disease Control COVID-19 can be found at: https://www.cdc.gov/coronavirus/2019-ncov/index.html

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Are the million-dollar PPP loans many PBC golf communities collected justified?

Posted on July 10, 2020 by Gerstin

In the News:

https://www.palmbeachpost.com/news/20200709/are-million-dollar-ppp-loans-some-palm-beach-county-golf-communities-collected-justified

By Mike Diamond Special to The Post

Posted Jul 9, 2020 at 7:30 AM

Six golf country clubs in Palm Beach County – Hunters Run, Quail Ridge, Wycliffe, Old Palm, Banyan Cay and the Loxahatchee Club – may have received as much as $18 million in PPP loans through the Small Business Administration.

Six golf course communities are among the more than 3,000 businesses in Palm Beach County that received Payroll Protection Program (PPP) loans through the Small Business Administration (SBA).

An analysis of the loans released this week by the SBA shows that the six clubs may have received as much as $18 million. The SBA had been sued by a number of newspaper organizations over the identity of the loan recipients. When the applicants applied, they were told the loans would be public record.

The program was designed to keep employees on the payroll. If employers do that and comply with the loan conditions, the loans become grants and do not have to be repaid.

The SBA agreed to identify all recipients of loans in excess of $150,000 but only provided ranges of funds received, refusing to reveal the exact amount.

The data released by the SBA do not include the amount of the loan but rather the loan amount a bank has approved. The actual amount of a loan could be smaller than the approved amount. All amounts are in ranges.

Some golf course communities that accepted PPP loans in Palm Beach County have recently spent upward of $10 million on massive improvements to their clubhouses and golf courses.

The clubs that took the money include:

– Hunters Run ($2 million to $5 million) in Boynton Beach.

– Quail Ridge ($1 million to $2 million) in Boynton Beach.

– Wycliffe ($2 million to $2.5 million) in Wellington.

– Old Palm ($1 million to $2 million) in Palm Beach Gardens.

– Banyan Cay Resort Club ($700,000 to $2 million) in West Palm Beach.

– The Loxahatchee Club Homeowners Association ($150,000 to $300,000) in Jupiter.

Scores of other Palm Beach country clubs had applied for the PPP loans. Many were approved but decided to refuse to accept the money on both moral grounds and legal grounds after reading the fine print. Government auditors are expected to review how the money was spent and can ask for the money to be returned and penalties to be imposed if they find misrepresentations.

Fifty-seven country clubs in Florida accepted the PPP funds. According to CNBC, more than 400 country clubs and golf courses received loans throughout the country. The issue of whether it is appropriate for golf course communities to receive PPP loans has been debated.

Assessment revenue a factor

Joshua Gerstin, a Boca Raton lawyer who specializes in homeowner and condominium association law, said he expects one factor the SBA will consider is how much revenue a country club gets from its assessments.

“If it is mostly assessment driven, the country club might have a problem,” he said. “If members continued to pay their assessments, there was no real loss of revenue. But if much of it comes from dining and other sources that members pay outside of their assessments, they could be eligible.”

According to the SBA, businesses must certify that the loan is needed “to support ongoing” operations and that they are unable to access “other sources of liquidity” to support their ongoing operations.

Addison Reserve General Manager Michael McCarthy said once he and his board saw those revised requirements, they decided that it would be wrong to participate in the PPP program.

“There was no way I could certify that we needed it stay in business or that we didn’t have other sources of liquidity,” he noted.

Wycliffe, Quail Ridge: We preserved jobs

Hunters Run President Michael Soroka declined to comment on the issue. According to the SBA, Hunters Run and Banyan failed to provide data to indicate how many jobs were saved by the loans. Wycliffe was chastised on CNBC early Tuesday morning for accepting its loan. The Post has learned that the Wycliffe loan amount was $2 million. It was able to preserve 281 jobs. Wycliffe’s general manager, Rob Martin, released a statement to The Post that read:

“At Wycliffe, we are thankful to all of our employees for their hard work and dedication through these challenging times. We took PPP money because we care deeply about our team and wanted to make sure that we had the ability to provide them a regular paycheck. Following the legal parameters, we only requested and received enough to cover our payroll needs and did not use our loan in any way to disadvantage other companies. We are thankful that we qualified to receive money so that our employees and their families could make ends meet during these challenging times.”

Quail Ridge GM William Langley said the PPP loan was used as intended. He noted that Quail Ridge would have had to have laid off many of its 300 employees without the loan. “We are not a club with deep pockets,” he said.

The Club at Admiral’s Cove in Jupiter was one of those that returned the funds – $3.1 million. “We saw too many issues, both moral and legal,” said CEO Bret Morris. “We did not want to take the risks.” He said Admiral Cove was able to keep its 500 employees working, noting: “We found other things for them to do.”

To Open or Not to Open, that is the Coronavirus Question.

Posted on April 29, 2020 by Gerstin

April 29, 2020 (Click here for .pdf version)

Is it Time to Dip a Toe into the Community Pool?

As state and local governments begin gradually easing their lock down and coronavirus related restrictions, community associations are struggling to decide when and how to start reopening their community pools and tennis/pickleball courts. In doing so, each community association is going to have to strictly follow a patchwork of federal, state and sometimes local/city restrictions and guidelines.

There is no need to rush, there are no federal, state or local mandates requiring community associations to open their pools and tennis/pickleball courts. In fact, as long as the federal or state emergency declarations remain in place, community associations can decide to keep their pools and tennis/pickleball courts closed. For some community associations, the governmental requirements to open their pools and tennis/pickleball courts will be too costly or impractical at this point to consider.

The first step to determine the guidelines for opening your community association’s pool and tennis/pickleball court is to locate the state, county and local/city emergency orders governing your community association. The best place to locate the most up to date state, county and local/city emergency orders is at: https://covid-19.lobbytools.com/. For your convenience, I posted the emergency orders pertaining to community association pools and tennis/pickleball courts for Broward County (click here) and Palm Beach County (click here). We are also expecting an order from the governor today as well.

Each community association should review the orders governing their location with the assistance of their attorney. In doing so, you may notice some governmental orders conflict. For example, a city a may require an extra precaution not required by the county. In such, instances, you should check with your attorney before proceeding. As a general rule, the more restrictive requirement should be followed.

Following are some highlights from the Palm Beach County and Broward County emergency orders pertaining to the opening of pools and tennis/pickleball courts:

Palm Beach County:

Continued adherence of CDC guidelines, including while in the pool, is required. Community associations are responsible for ensuring compliance. Therefore, if members violate the guidelines both the member and the association could be fined. The CDC guidelines for social distancing can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

A. Tennis Courts: Tennis and outdoor racquet facilities shall reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

1. Singles play only is permitted. No congregating on the court or sidelines is permitted.

2. Locker room and shower facilities shall remain closed. Restrooms must be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

3. It is the responsibility of staff or management to ensure compliance with this order.

B. Community Pools: Community pools shall reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

1. Pool capacity shall be limited to ensure that social distancing in accordance with CDC Guidelines is maintained at all times.

2. Locker room and shower facilities shall remain closed. Restrooms shall be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

3. Pool deck seating or lounging shall be restricted to ensure social distancing in accordance with CDC Guidelines.

4. One or more facility staff or management must be present at each facility location to monitor and ensure compliance with the restrictions within this order.

Broward County:

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

A. Pools. The pool deck and pool can only be used by current residents; six (6) foot social distancing CDC guidelines are adhered to; pool deck and pool occupancy are limited to no greater than 50% capacity; and either:

(1) the use of the pool deck and pool are supervised by a sufficient number of
employees or other person(s) designated by the housing development during the hours
in which they are used to ensure compliance with the requirements of this section, and
employees or other designees of the housing development sanitize the facility’s pool
chairs, railings, gates, tables, showers, and other equipment at the pool and pool deck on
a regular basis;

(2) all furnishings are removed from the pool deck.

B. Tennis. Use of tennis courts and pickle ball courts is limited to residents only shall be limited to a maximum of two people on the court at any one time (i.e., singles play only), and disc golf courses limited to singles play. Basketball courts are limited to individual use (no multiplayers or pick-up games are permitted, with the exception of games such as “horse”), and social distancing must be maintained at all times. Racquetball courts are limited to a maximum of one person on the court at any one time.

Stay tuned for more. In the meantime, be safe and be well.

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Florida Community Associations, Disclosing the Names of the Infected.

Posted on March 24, 2020 by Gerstin

– Disclosing the Names of Infected Members in Florida’s Community Associations.

By: Joshua Gerstin, Esq. (click here for .pdf version)

If a community association is aware a member has the coronavirus, the first step for the association should be to alert its members without naming the infected member(s). In this initial alert, the Association should remind its members to follow the guidelines of the local governing authorities and the CDC regarding staying healthy during this pandemic (washing hands, social distancing, etc.). After sending the initial alert, determining whether the association can or must disclose the identity of an infected member is the troublesome next step. Although this issue has not been decided by the courts or an administrative agency yet, there are various laws governing the disclosure of confidential medical information Florida’s community associations should familiarize themselves with.

The most widely known law covering medical information confidentiality is the federal Health Insurance Portability and Accountability Act known as “HIPPA”. According to HIPPA, community associations do not qualify as a “covered entity” (ex. doctor’s office, etc.). As such, HIPPA generally does not apply to most of Florida’s community associations. However, Florida Statute §456.057 entitled Ownership and Control of Patient Records; report or copies of records to be furnished; disclosure of information (“Florida Medical Records Act”) and Florida Statute §720.303(5)(c)(4) (for homeowner associations) or §718.111(12)(c)(3)(d) (for the condominium associations) pertain to medical records within an association’s Official Records and may apply if the association has possession of the owner’s medical records indicating he/she is infected. Based on a “strict reading” it is reasonable to conclude these Florida statutes ( §720.303(5)(c)(4), §718.111(12)(c)(3)(d) and §456.057) prohibit a community association from disclosing the identity of an infected member when knowledge of the infection was obtained from information contained in the infected member’s medical records.

In most instances, a community association will not be in possession of medical records indicating a diagnosis of infection. Often times, an association will learn a member is infected from the inadvertent or purposeful disclosure by a care provider. In such instances, the association should determine whether the sick member authorized the disclosure to the association. If so, the association should ask the sick member for written authority to disclose the information identifying him/her as having the coronavirus. Without written approval from the sick member, the purposeful or inadvertent disclosure by a medical professional of an infection does not give the association the ability to broadcast the same information to all of its members free from liability for its actions.

Most often, the association will have third or fourth hand information from an owner who knew or saw something leading them to conclude a member has been infected. Broadcasting such information to other members, although it may seem at least anecdotally accurate, will subject the association to liability.

Some alternative approaches to disclosing the name of the infected member(s) are:

1. Contacting the local health authorities and obtaining their opinion as to whether this person, based on the surrounding demographic, should be brought to a hospital for quarantine or what steps the person and the association should take.

2. Contact the individual to determine whether he or she would consent in writing to the disclosure of the infection. If the answer is yes, no problem, the association can disclose.

3. The Association should determine whether the individual and the in-home care givers are both isolating in the home and not going outside other than in their backyard or on their balcony. The association should routinely check-in with the person/caregivers via telephone and driving by as much as practical. Many condominium associations have security cameras that can monitor whether the infected member has left his/her unit and entered a common area or came into contact with a common element (ex. elevator). The Association should continue this for the longest maximum time the CDC states a person is infectious. If an infected member flouts the CDC isolation guidelines, the police and local health department should be notified and asked to take action. Relaying this health related information regarding an infected member to the health or police authorities would most likely not violate the above cited laws.

4. Florida’s condominium associations should enact an action plan for banning any infected members from using the common areas and common elements (if they are not closed already). These plans should be done at a meeting of the board of directors with its attorney that is closed to the membership due to the discussion of medical information and anticipated litigation. However, the infected member(s) cannot be denied ingress or egress to their units/homes. Therefore, especially in Florida’s condominium associations, a plan for extra, sustained cleaning of all common elements (ex. elevators) and common areas are a must.

Community association members, especially those in 55+ communities, are rightfully afraid of catching the coronavirus. As we become aware of the increasing amount of infections, community association members will demand their associations release the names of the infected with impassioned pleas for their own safety. When this happens at your community association, your initial focus should be on alerting members to the many ways they can protect themselves while consulting with the association’s attorney and local health professionals in the development of an action plan.

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Coronavirus & Florida Community Association Emergency Powers.

Posted on March 15, 2020 by Gerstin

How Florida’s Emergency Power Statutes Can Help Keep Your Community Safe.

(click here for .pdf version)

Both President Trump and Governor DeSantis invoked states of emergency and triggered the statutory emergency powers for Florida’s community associations. Found in Sections 718.1265, and 720.316 of the Florida Statutes, these emergency powers were enacted with hurricanes in mind. However, the statutes apply whenever a national or state emergency is declared. As such, these emergency powers can assist community associations in their fight against the spread of the Coronavirus. Below is the statute with certain parts highlighted in bold you may find useful for your community association. Although the statute set forth below is the version for condominium associations, an identical version applies to homeowner associations. As always, speak with your association’s attorney before implementing any of these statutory emergency powers and follow the most updated directives from your local health officials.

718.1265 & 720.316?Association emergency powers.— (click here for HOA version)

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f)?Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.

(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

(2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

Educational purposes only. Not meant for legal advice, please consult your attorney for legal advice.

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Gerstin & Associates
40 SE 5th St., Suite 610
Boca Raton, FL 33432
Telephone: (561) 750-3456
Fax: (561) 750-8185
Email: joshua@gerstin.com
Web: www.gerstin.com