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Does Low Tide make your Dock Unusable? International Subsea Services can improve the depth of canals, slips and channels 

Does Low Tide make your Dock Unusable? International Subsea Services can improve the depth of canals, slips and channels 

  • Posted: Apr 11, 2022
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Does Low Tide make your Dock Unusable? International Subsea Services can improve the depth of canals, slips and channels. Using a process of Micro dredging and Hydraulic dredging.

Schedule a free consultation today! https://bit.ly/3BqwCui

 

Full service dredging contractor, offering maintenance dredging services for lakes, ponds, canals, rivers, inlets, and other waterways.

Schedule a free consultation today! https://bit.ly/3BqwCui

BOARD MEMBER to BOARD MEMBER EMAILS: ARE THEY OFFICIAL RECORDS?

BOARD MEMBER to BOARD MEMBER EMAILS: ARE THEY OFFICIAL RECORDS?

  • Posted: Apr 08, 2022
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BOARD MEMBER to BOARD MEMBER EMAILS: ARE THEY OFFICIAL RECORDS?

On January 6, 2022, the Department of Business and Professional Regulation (DBPR), through the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division), entered a Final Order Granting Petition for Declaratory Statement in the matter of In re: Petition for Declaratory Statement, James Hanseman, Petitioner (the Hanesman Declaratory Statement). In this Final Order, the Division Director (Chevonne Christian) stated that all board member to board member emails are official records of the association. Unfortunately, this Order was entered i) without regard to who owns the device from which the email was sent;

ii) without regard to whether the manager was included in the email chain; iii) without regard to whether the email was sent to a minority or majority of board members; and iv) without regard to the board members’ constitutional right of privacy. The decision does not consider the sacrosanct requirement that a quorum of board members is needed to conduct business. If a board member can enter into a conversation with a minority of the board without triggering a required meeting notice, then a board member should also be able to communicate, by any means, with a minority of the board, including email, without it rising to the level of being considered an official record of the association. However, given the scope of the Order, this will likely require an act of the Florida legislature to accomplish.

In general, a petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner’s particular circumstances. These statements are only binding upon the parties who join in the proceeding. The Division issues “declaratory statements” when requested by parties who are unclear about the applicability of portions of the Condominium Act, Chapter 718, Florida Statutes. Declaratory statements are formal written positions taken by the Division on the laws and rules the Division is authorized to enforce and interpret. Importantly, with regard to the Hanesman Declaratory Statement’s precedential value, it has none whatsoever. It only applies to the parties named in the Hanesman Declaratory Statement, which includes the petitioner, Mr. Hanseman, and the Wildewood Springs II-B Condominium Association Inc. This decision is merely persuasive authority, at best. In fact, the Division does not even have to follow their own written precedent. Yet, it is predictive as to how the Division will rule should a similar fact pattern be presented. So, beware!

The Hanesman Declaratory Statement could stand for the broader proposition that all director emails are official records of the association, or perhaps it stands for the narrower proposition that board member emails are not automatically excluded as an official association record merely because the emails were sent from a director’s private email address and privately owned computer. Time will tell, I hope. In the meantime, applying its broadest interpretation means that the Division has now opined that all director-to-director emails are official records. This broad interpretation means such emails must be produced in response to a member’s official records request, unless later excluded from production due to matters of privilege. This broad interpretation also means that for all requests to inspect the official records of the association, directors will have to search their own hard drives and provide copies to the manager or whoever is coordinating the inspection. If this broad interpretation is to be applied, it is yet another burdensome requirement for board members and could be viewed as an extreme overreach of a governmental administrative agency. In light of this possible interpretation and obligation to turn over board member to board member emails, who will want to serve on the board, now?

Let us examine the history of this important topic. On March 6, 2002, Sue Richardson, the Chief Assistant General Counsel of the DBPR, issued an opinion which provided that “[c]ondominium owners do have the right to inspect email 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 emails, but…if the email 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, March 30, 2009), the arbitrator of the Division ordered that

“…emails…existing…on the personal computers of individual directors…are not official records of the association…Even if directors communicate among themselves by email strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an email to an individual director or to all directors as a group, addressed only to their personal computers, is not a 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.”

Then, on July 1, 2014, the Florida Legislature amended s. 718.112(2)(c) to provide that board members may communicate via email. Just because the legislature clarified that directors may do so does not mean that such email communications should automatically be considered official records of the association. Board members are not publicly elected officials. Yet, the Division’s recent Hanseman Declaratory Statement creates a basis to conclude that the Division desires to hold a director’s email communications to the same standards.

A condominium association is a privately owned entity whose members elect representatives to effectuate the orderly operations of the association. Serving as a board member of a condominium association is not at all akin to holding public office, and in our opinion, board members should not be held to the same standard as that of elected officials. The last thing a community association board member needs is to be micromanaged by one or more cantankerous owners and the vocal minority.

In the Hanesman Declaratory Statement, Ms. Christian takes the position that because §718.111(12)(a), Fla. Stat., provides, in relevant part, that the “official records of the association” include “all of the written records of the association not specifically included in the foregoing which are related to the operation of the association,”

that nothing exempts records when created or transmitted with a board member owned device rather than association owned device.

She then applied what she referred to as the plain meaning of the term “writing,” referring to the definition of the term from Black’s Law Dictionary (11th ED. 2019), which provided “emails constitute a form of writing.”

In fact, had the Florida Legislature intended for emails from one board member to another to be considered official records subject to inspection, then when it amended Chapter 718.112, eff. July 1, 2018, to provide that “members of the board of administration may use email as a means of communication but may not cast a vote on an association matter via email,” the legislature could have clarified that such emails were considered a part of the official records. Obviously, the legislature did not do so. This can only mean that the legislature had no intent whatsoever for a director’s email sent from their personal computer to a minority of other board members to be considered an official record.

What is the end game of the Hanesman Declaratory Statement? The implications are far-reaching, indeed. Does this mean that text messages must be disclosed? What about communications on messaging apps such as WhatsApp and Signal? If not, why not? The logic is arguably the same. What about conversations held with a board member outside of a meeting—must the board member make a disclosure he or she had such conversation at the next noticed meeting? Where does it end?

It is rather common knowledge that there is already a mechanism in the law to acquire documents of every kind. It is called a “subpoena duces tecum” and is used in active litigation to compel production of documents. In this author’s opinion, that is the only circumstance in which a board member’s private emails must be produced, unless and until the Florida Legislature or an appellate court squarely addresses this issue.

As the phrase goes, “one step forward and two steps back.” In other words, while a board member can use email to communicate with a fellow board member, it may come with the steep price of later required disclosure. So, if you want to avoid email disclosure, you may want to consider using a phone to discuss matters. If you want to play it really safe, then be sure to only chat to a minority of board members, too. Until there is an appellate court decision or statutory law that squarely addresses email disclosure, please be sure to discuss these matters with your association’s attorney. In the meantime, perhaps consider using dedicated association-hosted email addresses for association-related emails.

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SO WHO CAN BE AN OFFICER OR DIRECTOR IN YOUR COMMUNITY?

SO WHO CAN BE AN OFFICER OR DIRECTOR IN YOUR COMMUNITY?

  • Posted: Apr 08, 2022
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SO WHO CAN BE AN OFFICER OR DIRECTOR IN YOUR COMMUNITY?

When reading the Florida statutes in regards to meetings and elections you will find that the word “MEMBERS” can be found everywhere in the provisions regulating meetings and elections. It even says that the annual meeting has to be a membership meeting, meaning that you have to be a MEMBER (deeded owner) to participate. The association even has the right to ask anybody who is not a member to leave the meeting. I have seen it done in various associations.

It’s a little different with officers, since the statutes are silent on the matter, but it seems to me that it would be pretty ridiculous to make a non-member “president of the board” – a person that doesn’t even have voting rights or could even get kicked out of the meeting since he/she is not a member.

I honestly don’t understand the reasoning behind making a non-member an officer. Don’t forget, a board (including the president) has far-reaching powers and could actually ruin the personal finances of all association members by making wrong decisions.

It really leaves the question: Why making a person “PRESIDENT” who has no financial interests in the association and would not even be affected by “stupid” decisions made by the board?

Even if laws and by-laws allow non-members to be an officer, it’s in my opinion a pretty stupid decision by the board to make a non-member the “PRESIDENT”.

 

Join Us In Support Of Taylor Yarkosky For State Representative!

Join Us In Support Of Taylor Yarkosky For State Representative!

  • Posted: Apr 08, 2022
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Join Us In Support Of Taylor Yarkosky

For State Representative!

Date: April 13, 2022
Time: 6:00pm – 8:00pm
Location: Corona Cigar Company
1130 Townpark Avenue
Lake Mary, FL 32746
RSVP: Makenzi Mahler
850-445-0684
Annual Fish Stocking Day! – Over 500,000 fingerling fish to stock in lakes in Miami, Broward and Palm Beach Counties!

Annual Fish Stocking Day! – Over 500,000 fingerling fish to stock in lakes in Miami, Broward and Palm Beach Counties!

  • Posted: Apr 07, 2022
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Annual Fish Stocking Day! Our staff arrives at 5:00am to load up over 500,000 fingerling fish to stock in lakes in Miami, Broward and Palm Beach Counties!

We will be going Facebook Live around 5:30 am, we hope you join us to watch this fun event!

Welcome to Allstate Resource Management, Inc.

The South Florida Leader in Resource Management

Allstate Resource Management has over 25 years of experience in maintaining the health of lakes, ponds, wetlands, and stormwater systems. We have continued since our inception to be the leader in resource management. Our services include lake managementwetland managementstormwater drain cleaning and maintenance, erosion controlfish stockingnative plantingsdebris removalwater qualityaquatic pest control, and upland management. All of our technicians are thoroughly trained and certified in order to meet the strict standards imposed by governmental agencies. This ensures that your property will be treated by only the most competent individuals who are proud of the services we render.

In addition to providing a healthy habitat, we specialize in the installation and maintenance of beautiful color lit fountains, bringing beauty and enjoyment to any lake or pond.

We also offer support services for property managers and HOA’s including educational presentations and CEU programs. Our approved courses offer continuing education credit to CAMs.

 

Another parking lot sealed and striped by our Atlantic Southern Paving and Sealcoating Crew in Fort Myers, Florida!

Another parking lot sealed and striped by our Atlantic Southern Paving and Sealcoating Crew in Fort Myers, Florida!

  • Posted: Mar 30, 2022
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Atlantic Southern Paving and Sealcoating

Another parking lot sealed and striped by our Atlantic Southern Paving and Sealcoating Crew in Fort Myers, Florida!

Choose to #PaveWithASP today for any and all of your parking lot and pavement needs by calling 1-833-PAVE-ASP or head to www.PaveWithASP.com

We self-perform the entire state of Florida as well as manage parking lots across the country!

 

Southeast Florida954-518-4315

6301 W Sunrise Blvd, Fort Lauderdale, FL 33313

Southwest Florida239-234-2155

9039 High Cotton Ln, Fort Myers, FL 33905, Fort Myers, FL 33905

Central Florida407-502-0040

37 N Orange, Ave 420, Orlando, FL

Space Coast321-408-5010

460 Cox Road, Cocoa, FL 32926

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Contact: Allstate Resource Management to create a detailed water quality program for your property.

Contact: Allstate Resource Management to create a detailed water quality program for your property.

  • Posted: Mar 30, 2022
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Allstate Resource Management can create a detailed water quality program for your property.

Sufficient and appropriate water quality information is crucial if you are to make important management decisions concerning waterway systems and care.
A detailed water quality program is a very useful tool. Data collection indicates seasonal fluctuations in nutrient levels which can positively or negatively influence an aquatic ecosystem. Our staff here is trained on the importance of testing water quality before any treatment is done!
Contact us for more information on how we test water quality before we treat a lake!
at 954-382-9766 or
info@allstatemanagement.com 
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Attorney-Client Privilege: Are Litigation-Related Communications Between An Association, Attorney, and Management Protected?

Attorney-Client Privilege: Are Litigation-Related Communications Between An Association, Attorney, and Management Protected?

  • Posted: Mar 24, 2022
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Attorney-Client Privilege: Are Litigation-Related Communications Between An Association, Attorney, and Management Protected?

BY   / of Becker

The attorney-client privilege is one of the oldest and most respected privileges in the law. The purpose underlying this fundamental privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others. The privilege covers written and oral communications and protects both individual and institutional clients including community associations.

However, the attorney-client privilege does not apply to every communication with an attorney and in certain circumstances can even be waived. For the privilege to exist, three requirements must be met: there must be a communication; the communication must have been intended to remain confidential; and the communication must have been made in the context of obtaining legal advice.

Pursuant to Florida’s Evidence Code, a communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:

  1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
  2. Those reasonably necessary for the transmission of the communication.

Florida courts have stated that the second exception (i.e. those reasonably necessary for the transmission of the communication) applies to agents of the client. This is so because in Florida, all corporate powers are exercised by, or under the authority of, the association’s board of directors. Further, as an inanimate entity an association cannot speak directly to its lawyers and must instead act through agents.

A management company and its personnel are generally responsible for the day-to-day operations of the community, implementing directives of the board, and serving as a liaison between an association and its counsel. Although a reasonable interpretation of the Florida Evidence Code and case law implies that a property management company is likely an agent of the association, such a determination is not guaranteed.

However, there are steps that can be taken by the association and its counsel to support an assertion of privilege such as including language in their management contracts that expressly extends the attorney-client privilege from the association to include the manager. The association’s counsel can also prepare a general Board Resolution authorizing the management company and its employees to act as agents of the association where necessary to further communications with legal counsel.

Evidentiary privileges (such as the attorney-client privilege) are sacred protections in a court of law. It is imperative that proper measures are taken to ensure that said privileges are not compromised. If your association finds itself involved in a potential or pending litigation, the board needs to work closely with the association’s attorney to protect the privileges the law provides to keep confidential communications out of the hands of the wrong people.


John Stratton

John handles business litigation and appellate matters representing individuals and corporations across an array of industries. He has significant and successful litigation experience in complex commercial, corporate, land use, and condominium litigation, contract disputes, commercial loan workouts, and civil appellate proceedings in both state and federal appellate courts.

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We are excited to announce to the Falcon team our new Chief Financial Officer, Clifton McElyea!

We are excited to announce to the Falcon team our new Chief Financial Officer, Clifton McElyea!

  • Posted: Mar 24, 2022
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We are excited to announce to the Falcon team our new Chief Financial Officer, Clifton McElyea! 

Clif brings 20+ years of experience in progressive leadership roles, including serving as CFO of a major provider of advanced technology solutions across the federal, state, municipal, commercial, and petrochemical refinery markets, and extensive experience with A/E firms. He has a wide technical accounting foundation with experience in public accounting, US GAAP, controls, reporting, systems, FP&A, corporate development, and treasury and strong penchant for building consensus, creating effective relationships, and negotiation skills. 

Clif is passionate about solving dynamic problems with creative solutions and will be responsible for driving the company’s overall financial strategy, including growth plans as we continue to expand our footprint. He will be playing an important role building a strong finance team with deep expertise and assisting with all 10 of Falcon’s offices. The dedication he’s shown throughout his career in unlocking business potential is invaluable to this next chapter with the Falcon Team.

Welcome to the team Clif!

CONTACT US (through our SFPMA Membership Page)

The Falcon Group
95 Mount Bethel Road
Warren, NJ 07059
(908) 595-0050
www.thefalcongroup.us

LAST SURFSIDE-INSPIRED BILL FAILS – A Perfect Opportunity Lost

LAST SURFSIDE-INSPIRED BILL FAILS – A Perfect Opportunity Lost

  • Posted: Mar 24, 2022
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As a result of the 2022 Florida legislative session, there will be no new statutes requiring mandated building/engineering inspections, no statutory changes to budgeting procedures, no mandated reserve study requirements, and no statutory changes to required disclosures.

While only a very few Florida counties have mandated in their code of ordinances that older condominium buildings have life-safety inspections, that does not mean required maintenance and proper planning can be otherwise avoided elsewhere. Board members must exercise their fiduciary duties with due care and due diligence. Voluntary engineering inspections and professional reserve studies should be considered to take place on a regular schedule. Maintenance, repairs, and replacements should be budgeted and funding sources properly identified.

As often explained by Board Certified attorney Lisa Magill, “is the law the only reason you stop at a red light? Probably not. You stop because there’s a likelihood a truck will smash into you from the side.” In other words, common sense should prevail. All condominium unit owners know that one day the roof, air conditioners, and water and cooling towers will need to replaced, the building will need to painted to ensure a water tight seal remains intact, the pool will need re-surfacing, and the parking areas and asphalt will need attention, too. Perhaps one of most expensive repairs, which is rarely discussed, let alone planned for and budgeted in advance, that even the Florida Statutes do not specifically mention it by name, is concrete restoration, which can cost tens of thousands of dollars, and often such repairs cost millions of dollars depending on the extent of the repairs. But, such repairs are a given. It is not a matter of “if” but rather only a matter of “when” these repairs will be required.

The only way to avoid a revolt of the membership when explaining the upcoming multi-million dollar assessment is to lessen the blow by having some, if not all, of the needed monies already saved in a reserve account. Section 718. 112(1)(f)(2)(a) provides that, “[i]n addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The amount to be reserved must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item. The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance.”

While a majority of the quorum of the membership can vote to waive or reduce reserves, this can only occur if the board of directors provides the membership such opportunity. For example, when voting to reduce reserves the percentage by which the required reserve can be reduced is decided in advance by the board and then presented to the membership for the vote. In light of the Champlain Towers South disaster, boards of directors should put considerable thought into these decisions.

On March 12, Ann Greggis of Florida Politics reported that “the Legislature’s inability to pass any legislation updating condo regulations in the wake of last summer’s disaster that killed 98 people stunned observers…For this Session, nine bills sought to change rules regarding condominium associations…An estimated two million people live in 912,000 Florida condo units that are 30-years or older. Another 131,773 units are 20 to 30 years old, according to the Florida Engineering Society & American Council of Engineering Companies of Florida….The executive director of the engineering society and council called the failure to pass any legislation this year a ‘missed opportunity,’ according to a news release.”

On March 11, Jon Schuppe and Phil Prazan, NBC 6 South Florida reported that, “[i]n the nine months since 98 people died in the collapse of a Surfside, Florida, condominium, state lawmakers have pledged to pass measures that could help avoid a similar disaster.

On Friday, they failed.

Negotiations between the Florida Senate and House of Representatives, both controlled by Republicans, broke down, with the two sides unable to agree on a bill that would require inspections of aging condo buildings and mandate that condo boards conduct studies to determine how much they need to set aside for repairs. The talks were undone by a disagreement over how much flexibility to give condo owners in the funding of those reserves.”

Never has the term “sausage factory” been more appropriate to describe the 2022 team of Florida legislators who failed to pass meaningful legislation that could have helped thwart another Champlain Towers South disaster. But, just because the legislature failed in doing so (for this year), that does not mean, as a board member, that you can fail, too. Make a commitment to your condominium community to plan for the future. Adopt a board resolution, or even amend the condominium declaration, to have required building inspections and reserve studies. In addition, if your association is waiving reserves year after year, stop it and start saving for the future. You will be glad you did.

 

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