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WEBINAR: NAVIGATING THE FEDERAL FAIR HOUSING: ASSISTANCE ANIMAL OR PET by KBR Legal, Pompano Beach

WEBINAR: NAVIGATING THE FEDERAL FAIR HOUSING: ASSISTANCE ANIMAL OR PET by KBR Legal, Pompano Beach

  • Posted: Jul 20, 2020
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WEBINAR: NAVIGATING THE FEDERAL FAIR HOUSING: ASSISTANCE ANIMAL OR PET

WEBINAR Florida Register

WEBINAR: NAVIGATING THE FEDERAL FAIR HOUSING: ASSISTANCE ANIMAL OR PET Date/Time Date(s) – 2020-07-23 1:00 pm – 2:15 pm Location Pompano Beach Office Register HERE A one-hour CE credit course with credit available as IFM or ELE. Provider #: 0005092 | Course #: 9630144 Online bookings are not available for this event.

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Q&A Broward County Emergency Order 20-22 – Impact on Community Associations by Campbell Property Management and Michael Bender from Kaye Bender Rembaum

Q&A Broward County Emergency Order 20-22 – Impact on Community Associations by Campbell Property Management and Michael Bender from Kaye Bender Rembaum

  • Posted: Jul 20, 2020
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Q&A Broward County Emergency Order 20-22 – Impact on Community Associations

WEBINAR Florida Register

Q&A Broward County Emergency Order 20-22 – Impact on Community Associations Cases are rising FAST in Florida. Your Broward County Leaders have reacted to this by imposing new regulations and making existing regulations more restrictive.  Make sure you understand the impact on your Condo or HOA! Join Campbell Property Management and Michael Bender from Kaye Bender Rembaum to learn about Broward County’s latest Emergency Order 20-22 and its impact on community associations during this brief, 30 minute webinar. Thursday, July 23 at 12:00 PM Please submit a question you would like us to answer when you register. We will address as many questions as possible during the webinar. Register Here! This webinar is for Broward County community associations only.

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FACIAL COVERING REQUIREMENTS COUNTY BY COUNTY & A HAND SANITIZER RECALL by Kaye Bender Rembaum

FACIAL COVERING REQUIREMENTS COUNTY BY COUNTY & A HAND SANITIZER RECALL by Kaye Bender Rembaum

  • Posted: Jul 06, 2020
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FACIAL COVERING REQUIREMENTS COUNTY BY COUNTY & A HAND SANITIZER RECALL

by Kaye Bender Rembaum

Below you will find face covering requirements for Palm Beach, Broward, Miami-Dade, Hillsborough, Pinellas, Pasco and Manatee Counties. In addition, the cities of Hallandale and Aventura are disucussed.

Where appropriate, face covering requirements for those living in condominiums and homeowners’ associations are discussed as well.

A recall was issued for a certain manufacture of hand sanitizer products which is presented immediately below the face covering information.

 

PALM BEACH COUNTY

Palm Beach County Order No. 2020-012 provides that effective June 25, 2020, facial coverings are required to be worn in public.  Specifically, facial coverings are required to be worn in:

 

i) Businesses and establishments of any type, including, without limitation, restaurants, retail stores, grocery stores, gyms, indoor recreational facilities and vehicles for hire,

ii) Public places, including outdoor areas that are open and regularly accessible, and outdoor common areas within private communities, where social distancing is not possible or not being practiced, 

iii) Palm Tran transit services, and

iv) County and municipal governmental facilities. 

 

Facial coverings are defined under the Palm Beach County Order as any covering which snugly covers the nose and mouth, whether store bought or homemade, mask or clothing covering, including, but not limited to, a scarf, bandana, handkerchief, or other similar cloth covering and which is secured in place. The Order is clear that facial coverings are required to be worn in outdoor common areas within private communities accessible to more than one housing unit where social distancing cannot be accomplished or is not being practiced.

One must also wear a facial covering while working in or visiting businesses and establishments, including indoor recreational facilities.

Businesses and establishments are further required to ensure compliance with the Order and establish a process for verification of compliance upon customer entry into the establishment, and to conspicuously post a specific sign in three languages (CLICK HERE TO LINK-http://discover.pbcgov.org/pdf/covid19/Retail-Mask-Poster.pdf) indicating that persons must wear facial coverings and maintain social distancing.

The Order does not specifically identify indoor common elements or common areas of condominium and homeowners’ associations as businesses or establishments where facial coverings must be worn. However, due to the fact that any type of business or establishment must comply and indoor recreational facilities are specifically listed as establishments in the Order, we believe that the Order likely applies to indoor common element and common area facilities.  Therefore, we recommend that you treat your indoor facilities as establishments under the Order until further orders or guidance is provided by the County.  This means that associations should monitor and require compliance with facial covering requirements, particularly in indoor recreational facilities, and conspicuously post the designated sign required by the Order.

There are exceptions to the facial covering requirements for certain individuals and in certain situations where they are not feasible, including, but not limited to, by children under two (2), by persons who have medical conditions such as asthma or COPD, and while consuming food or beverages.  However, the exceptions are limited and should be implemented in accordance with the Order so as not to cause the spread of the virus.  Finally, compliance is serious as the county has now indicated that fines and penalties may be issued for businesses that do not comply. Whether this includes associations is to be determined.

 

BROWARD COUNTY

Generally, facial coverings must be worn anytime you obtain a good or service from any establishment, including entering, exiting, and otherwise moving around within the establishment (and must be worn by persons working in those establishments during in-person interactions).

The covering should cover the nose and mouth, and comply with the CDC recommendations on the use and sanitation of such coverings. There are certain limited exemptions, including, without limitation, children under the age of two or children of any age while in the custody of licensed childcare facilities, persons with medical conditions, or during the time-period when you are receiving a good/service that precludes wearing a facial covering (e.g., eating, drinking, receiving a facial grooming).

Violations are subject to potential civil penalties (fines) and/or criminal enforcement (2nd degree misdemeanor).  Suspected violations can be reported to local municipal code enforcement.  The Broward County Order does not specifically require facial coverings within private residential communities (condos/HOAs). Please note, however, that cities may have stricter requirements than the county, so you should confirm with your city accordingly.

Any questions concerning the county requirements can be directed to the County COVID19 Hotline: ‪(954) 357-9500.

 

The relevant FAQ from the county, and the three (3) Orders are below:

FAQ about Facial Coverings from County: https://www.broward.org/CoronaVirus/Documents/FacialCoveringsFAQs.pdf

EO #12: https://www.broward.org/CoronaVirus/Documents/EmergencyOrder20-12.pdf

EO #13: https://www.broward.org/CoronaVirus/Documents/EmergencyOrder20-13.pdf

EO #14: https://www.broward.org/CoronaVirus/Documents/EmergencyOrder20-14.pdf

 

CITY OF HALLANDALE

Facial coverings are required within the common areas of all buildings with multiple residents per Emergency Order HB20-12.

 

CITY OF HOLLYWOOD

All persons beyond legal boundary of residential property are required to wear facial coverings consistent with CDC guidelines as per Emergency Order 2020-06.

 

 

MIAMI-DADE COUNTY

Miami-Dade County issued Emergency Order 20-20 on April 9, 2020 (“Order 20-20”) which requires that all persons working in or visiting grocery stores, restaurants, pharmacies, construction sites, public transit vehicles, vehicles for hire, and locations where social distancing measures are not possible to wear facial coverings. In other words, face masks are required where social distancing is not possible. The Order defines a facial covering as “any covering which snugly covers the face and mouth, whether store bought or homemade, and which is secured with ties or ear loops.”

On May 15, 2020, Miami-Dade County issued Emergency Order 23-20 (“Order 23-20”) further providing that anyone “working in or visiting an establishment, including but not limited to airports, seaports, and mass transit facilities and vehicles” must wear a facial covering as described in Order 20-20. However, Order 23-20 provides an exemption for children under the age of two years, persons who have trouble breathing, where federal or state safety regulations prohibit the wearing of facial coverings, and for persons engaged in strenuous physical activity.

On May 27, 2020, Order 23-20 was amended to provide an additional exemption to the facial covering requirement “while persons are eating or drinking.” Additionally, Order 23-20 adopts The New Normal; A Guide for Residents and Commercial Establishments (the “New Normal Guidelines”) which includes industry specific protocols for the reopening of retail and commercial establishments, including general reopening guidelines that provide that facial coverings must be worn inside businesses and commercial establishments or wherever social distancing is not possible.

On June 22, 2020, Mayor Carlos A. Gimenez released a statement regarding the importance of wearing masks and social distancing. He reiterated that masks are required indoors at business establishments and outdoors when people cannot practice social distancing to remain at least six (6) feet apart. In his statement, Mayor Gimenez acknowledged the stricter rules issued by some municipalities in Miami-Dade County, including Miami, North Miami Beach, Aventura, Hialeah, and Miami Gardens.

 

CITY OF AVENTURA

As pertains to community associations, the City Manager of Aventura issued Emergency Order Number 12 (“Order 12”) which provides additional mandates requiring the use of facial coverings in the interior “Common Areas” of commercial buildings and residential condominium and cooperative buildings. Order 12 provides that common areas include lobby/reception areas, hallways, elevators, mailrooms, clubhouse/meeting rooms, and stair wells. That means that you are required to wear a mask in any interior common areas of condominium or cooperative buildings in the City of Aventura. It is important to note that Order 12 provides that property managers/building managers are required to enforce the facial covering requirement.

 

HILLSBOROUGH COUNTY

Order 2020-27 went into effect on 5pm June 24, 2020.  The order does not specifically apply to community associations as they are not a “business” under the order. Face coverings must be worn inside all indoor establishments. Businesses are required to enforce the mask order and can be charged with a second-degree misdemeanor if they don’t, a penalty of up to 60-days in jail and/or six months’ probation and a $500 fine.  The exception does not apply to children under two, persons with pre-existing medical conditions that would be worsened by a mask, hearing-impaired persons, those working in a profession that would be unable to perform their duties with a mask such as public safety, exercising, eating and drinking, or those already observing federal social distancing guidelines (the 6-foot rule).

Tampa is the only exception in Hillsborough where the mask rule would apply to community associations.  if you are outside your home, you must wear a face covering and if no face covering,  up to a $500 citation could be issued.  This would apply to community associations whenever a resident is outside of their residence.

 

PINELLAS COUNTY

Order 20-14 went into effect on 5pm June 24, 2020. Face coverings must be worn in all indoor public places in Pinellas County.  While not specifically drafted to apply to community associations, the definition of indoor public place would cover community associations when the residents can access the facility.  The only exceptions applicable to community associations are if less than 10 people are in the facility and they are practicing social distancing.  Parties not wearing a mask can receive a civil citation of $100 for a first offense, $250 for a second and $500 for a third. Additional repeat violations may result in a misdemeanor arrest.  The exceptions mirror those of Hillsborough County and Pinellas’s enforcement cannot conflict with the Americans with Disabilities Act.  The Order does not apply to government entities or hospitals or persons under the age of 18.

 

PASCO COUNTY

Order went into effect ‪5pm on June 25, 2020.  Face coverings must be worn inside all businesses, government offices, and schools.  The definition of businesses is nebulous enough to ensnare community associations under the “providing services to the public” standard.  If someone does not wear a mask in the aforementioned places, they will not be able to enter the business, or will be removed once inside. Individual business owners are required to enforce the ordinance or may face a fine up to $250. The exceptions mirrors Hillsborough County and Pasco’s enforcement cannot conflict with the Americans with Disabilities Act.  It is suggested you speak with your community association’s attorney due to the lack of specificity in Pasco County’s Order to determine if the Order may apply to your community association.

 

MANATEE COUNTY

No mask requirements.

 

 

HAND SANITIZER RECALL 

The Food and Drug Administration issued a warning on nine alcohol-based hand sanitizers manufactured by Eskbiochem SA de CV in Mexico because  it contains wood methanol, a toxic substance.  It can result in death if ingested or if  absorbed through the skin.

“Consumers who have been exposed to hand sanitizer containing methanol should seek immediate treatment, which is critical for potential reversal of toxic effects of methanol poisoning,” the FDA wrote on June 19.”

Following is list of the hand sanitizers manufactured by Eskbiochem:

 

All-Clean Hand Sanitizer (NDC: 74589-002-01)

Esk Biochem Hand Sanitizer (NDC: 74589-007-01)

CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-008-04)

The Good Gel Antibacterial Gel Hand Sanitizer (NDC: 74589-010-10)

CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-005-03)

CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-009-01)

CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-003-01)

Saniderm Advanced Hand Sanitizer (NDC: 74589-001-01)

 

 

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5 SAFETY TIPS FOR A FUN & SAFE JULY 4TH IN YOUR HOMEOWNERS ASSOCIATION

5 SAFETY TIPS FOR A FUN & SAFE JULY 4TH IN YOUR HOMEOWNERS ASSOCIATION

  • Posted: Jul 03, 2020
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5 SAFETY TIPS FOR A FUN & SAFE JULY 4TH IN YOUR HOMEOWNERS ASSOCIATION

Any fireworks that explode, emit a flame or spark, performs as a projectile, may be illegal and prohibited in many municipalities by Fire Prevention Codes. Violators could be subject to arrest,  fines, and could be liable for damages or injuries caused by those fireworks.

 

Here are 5 tips to help you have an enjoyable July 4th celebration if it involves fireworks:

1. Use only legally purchased, approved fireworks. Use them as directed, under supervision and clear of any combustible material and clear of all buildings.  Legal fireworks should be used or overseen by a responsible adult. No such fireworks may be thrown into, over, or around other homes, forested areas, or left in the common areas of the HOA. Residents who fail to comply with these restrictions will be held responsible for any damage and repairs.

 2. Local Code enforcement Laws – If you plan on using fireworks you should first check with the local law enforcement or city codes before setting off fireworks. There may be noise ordinances and fireworks may be illegal all together. This goes beyond the governing by your HOA.

  1. HOA Property rules and regulations – If you plan on using fireworks for a 4th of July celebration it is important to check your HOA documents,  Association’s CC&Rs regarding the use of fireworks. You could be in violation of HOA rules or safety rules.

  2. Safety-Insurance – You need to fully understand your homeowners insurance policy regarding your own property damage, accidents or injuries as a result of using fireworks. If your fireworks go or land on another resident’s property or on common areas, you may be responsible for damages to property and accidents or injuries that may occur.

People think sparklers are safe. Some sparklers can attain a temperature as high as 1800 degrees Fahrenheit and cause severe injuries. Whether a spectator or the user of malfunctioning fireworks, victims may be able to seek damages for their injuries.

  1. Littering – Fireworks leave debris, paper shreds, fuses, powder residue and other materials that may leave a mess and be potentially harmful.   Be sure to clean up after your fireworks display. You could incur a fine for littering or damage to yards, sidewalks, streets or other common areas.

To ensure a safe 4th of July, we encourage residents to know and adhere to all policies by your community association and local laws before having a fireworks display.

It is reported that 200 people on average go to the emergency room every day with fireworks-related injuries in the month around the July 4th holiday.

It’s the responsibility of the HOA board to uphold, enhance, and maintain the Association. Reminding residents of 4th of July safety lets them know you care about their safety.  This is why HOA ‘s must implement and enforce rule and regulations to protect the association, homeowners and the community.

It’s not too late to get patriotic and think about your HOA hosting its own July 4th celebration to let members know they live in a fun and safe HOA.

 

 

Below are tips and laws from Consumer product Safety commission

We believe everyone  has the right to celebrate our country’s freedom on the 4th of July with Joy & Enthusiasm. Keep in mind that your right to celebrate ends where the local noise ordinances, laws, your neighbor’s rights and property begins.

 

WASHINGTON, D.C. – This year’s July 4th holiday may look different from most, with many people celebrating from home due to social distancing restrictions still in place to help stop the spread of COVID-19. All too often, however, Independence Day backyard celebrations can end up with a trip to the hospital for fireworks-related injuries.

“Many Americans will not get to see the grand, professional fireworks displays this 4th of July given the cancellations of public celebrations and stay-at-home orders across the country. As an alternative, people are purchasing their own fireworks in an effort to recreate that tradition at home,” said CPSC Commissioner Dana Baiocco. “The need for safety awareness regarding fireworks is greater than ever,” she said, “and anyone who plans to use consumer fireworks this year should review and follow CPSC’s simple safety tips to prevent injuries and incidents.”

The U.S. Consumer Product Safety Commission (CPSC) wants consumers to know the risks of handling fireworks at home, and how to prevent serious injuries and deaths.

Tips to Celebrate Safely

  • Never allow young children to play with, or ignite, fireworks, including sparklers. Sparklers burn at temperatures of about 2,000 degrees Fahrenheit—hot enough to melt some metals.

  • Keep a bucket of water or a garden hose handy, in case of fire or other mishap.

  • Light fireworks one at a time, then move away quickly.

  • Never try to relight or handle malfunctioning fireworks. Soak them with water and throw them away.

  • Never place any part of your body directly over a fireworks device when lighting the fuse. Move to a safe distance immediately after lighting fireworks.

  • Never point or throw fireworks (including sparklers) at anyone.

  • After fireworks complete their burning, douse the spent device with plenty of water from a bucket or hose before discarding the device to prevent a trash fire.

  • Make sure fireworks are legal in your area, and only purchase fireworks that are labeled for consumer (not professional) use.

The Data on Injuries and Deaths

Today, CPSC announced that about 10,000 injuries and 12 fireworks-related deaths were reported for 2019.

There were an estimated 10,000 fireworks-related, emergency department-treated injuries in 2019, with 73 percent occurring during the month surrounding the Fourth of July (June 21-July 21). During that period, sparklers were the number one cause of injuries, accounting for an estimated 900 injuries; 66 percent of the injuries were to males. Similar to 2018’s data, nearly half of the estimated injuries were to individuals younger than 20 years of age. In fact, half of reported sparkler injuries involved children younger than 5.

At least 12 people died from fireworks-related incidents in 2019. Several deaths occurred when victims held and ignited fireworks. In one of the reported cases in 2019, a 21-year-old male was critically injured when lighting mortar-type fireworks on the rooftop of an apartment complex. The firework ignited and exploded while the victim was holding it over his head. The victim was taken to the hospital, where he died five days later.

CPSC has reports of 126 fireworks-related deaths between 2004 and 2019.

Video News Release (VNR)

For lifesaving information:

– Visit CPSC.gov.

– Sign up to receive our e-mail alerts.

– Follow us on Facebook, Instagram @USCPSC and Twitter @USCPSC.

– Report a dangerous product or a product-related injury on www.SaferProducts.gov.

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The future of cities:  How are public space and social life going to change with Covid-19?

The future of cities:  How are public space and social life going to change with Covid-19?

  • Posted: Jun 29, 2020
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The future of cities:  How are public space and social life going to change with Covid-19?

The Covid-19 crisis will bring big social consequences, which will radically change both our human relations and the spaces these inhabit. As the concentrated manifestation of the contemporary world they are, cities are going to be hit by this shifting paradigm.

Urban spaces will have to readjust their design and their infrastructures to the new reality. Also our social interactions will change. We will no longer have so much interaction with others when we go out. Some cultures –the warmest ones– will even have to change more dramatically. We wonder: What will happen with the two or three kisses, traditional in some Southern European countries? Or with the shake of hands, used in Anglosaxon cultures? This situation of “physical distance” will lead us to develop a more virtual life, where online platforms will become, even more, the new public sphere.

How is the future in our cities going to be? How is this crisis going to transform our public space and social life in cities? We do not know yet. The only thing we can do right now is to assess what is happening and learn from the outcomes in order to make cities better in the future.

 

 

 

1 | Bringing People Together but Keeping Them Apart

A big part of urban planning’s history has consisted of managing our way out of infectious diseases and pandemics. Today, Covid-19 is challenging urbanization again, re-opening the debate regarding which city model is preferable: urban sprawl or urban densification. While densely populated and hyper-connected cities are more efficient and sustainable, they can amplify pandemic risk of transmission.

Thus, cities –especially densely populated ones– will need to create and adapt public environments and infrastructures to be livable, safe, agile and adaptable. Hence, tactical urbanism –short-term, low-cost, and scalable interventions– can play a big role in shaping and implementing pilot projects. Likewise, community involvement is essential as it allows for the acquisition of local knowledge while ensuring public compliance with policy decisions.

 

2 | Adapting Urban Environments to New Necessities

Due to the Covid-19 pandemic, both urban facilities —public transport, leisure, shops, etc.— and public spaces will have to adapt so all preventive measures are fulfilled. 

Indoors, regulations will be more rigorous: cleaning and disinfection will be done with higher frequency, new measures such as hand sanitizers use or shoe sole cleaning will be implemented, and their capacity will need to be reduced to comply with physical distancing. Additionally, protective equipment —masks, gloves, screens, sensors, etc.— and access control methods will be installed to avoid any risk of transmission and infection.

 

3 | Housing as a Right & Multifunctionality as a Must

Stay-at-home policies are exacerbating inequalities as large parts of the worldwide population live in slums or do not have a home at all. To top it off, common places to find shelter or bathrooms —libraries, gyms— are closed. Consequently, as the coronavirus spreads, these groups are the most vulnerable.

This leads to the conclusion that, after Covid-19, the design of indoor environments will have to change. If people are to spend more time indoors, homes will need to accommodate more uses. Apartments will have to be properly ventilated and better lit in order to improve living conditions and avoid entirely sealed buildings recirculating pathogens through their systems. Shared spaces will need to be rethought as well. 

 

4 | Adjusting Everyday Life to the “New Normal”

The pandemic affected almost every aspect of people’s life, and at the moment, going back to old habits does not seem a possible scenario. So what will the “new normality” look like?

Local and international mobility will be monitored and controlled, while cities are already trying to reorganize flows, reschedule working and school activities to avoid concentrations during rush hour. We will have to get used to new routines and social behaviors, which could radically change our way to use the public space.

The psychological effects of stay-at-home policies and physical distancing will be strong, especially in those cultures where gatherings and open-air activities are at the core of social life. Everything considered normal until a few months ago could dramatically change, not only because of the new rules and restrictions, but also because of people’s fear to physically interact with others.

 

5 | Physically Apart but More Connected than Ever?

The “new normal” will also have a direct effect on the use of urban spaces, in a context where there will be a drastic shift from developing social life outdoors to being more confined. A higher consumption of Internet-based activities (online shopping, telemedicine, macro-events, arts and leisure, etc.) will become more usual. Despite the big challenges this shift will bring, it also represents an opportunity for all these activities to reinvent themselves by means of innovation and new technologies. 

The counterside of this new virtual life’s technological high dependence will widen social inequality. As not everyone counts with appropriate Internet connection and digital devices, this crisis is an opportunity to rethink the future feasibility of telematic education and work models improvised during quarantine. In the applicability to the “new normal”, it will be essential to set up regulations that guarantee social inclusion.

 

6 | Building More Resilient Communities

The health crisis has clearly revealed the vulnerabilities of the most disadvantaged groups. The need to respond to their necessities during the lockdown has demonstrated to be even more pressing than before. Many municipalities developed plans to support low-income families, elders or precarious workers, but at the same time bottom-up mobilization of neighbors’ associations and self-managed organizations revealed to be very important assets for local communities.
 
Nevertheless, as the lockdown ends, the structural socioeconomic problems that the coronavirus has revealed will stay. This demonstrates the importance of establishing safe ways to assist elderly people and to protect precarious workers or domestic caregivers, as well as supporting parents in reconciling their professional and personal life. Achieving this will represent a major step towards a more resilient society.

 

Social inequalities and class differences have manifested more obviously – with “essential” workers having to go out to work; housing conditions being very different for everyone during the confinement or the impossibility to access new technologies for several social groups. Issues that have made even more clear the fact that we live in an unequal society that is susceptible to collapse in front of any crisis.

If in the last decades the way how governments and corporations gather data from individuals for Big Data purposes has been on the agenda of all discussions, the Covid-19 crisis will widen the debate. The need for more discipline and new regulations can inevitably lead towards a situation of social control. In this new context, there will be a need to find a balance between establishing safety, health and well-being for everyone, but respecting the individual and collective freedom at the same time.

However, despite the impact Covid-19 is going to have in cities, we should really consider this crisis as an opportunity to rethink our cities and create more resilient communities and livable environments.

 

 

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New Guidelines for Community Associations – Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect

New Guidelines for Community Associations – Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect

  • Posted: Jun 22, 2020
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Florida’s Department of Business and Professional Regulation Issues New Guidelines for Community Associations

Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect

 

Board members and property managers of condominium communities need to be aware that the State of Florida’s Department of Business and Professional Regulation issued revisions to rules pertaining to violations and penalties, 61B-21, Condominium Resolution Guidelines for Unit Owner Controlled Associations,

The disciplinary guidelines detail minor violations and penalty guidelines within Chapter 718, F.S.  If a violation is deemed minor, the division will send a Notice of Noncompliance to the association. A community association’s failure to timely comply with the Notice of Noncompliance may result in sanctions, including civil monetary damages and enforcement. For the violations not deemed minor by the division, there is no longer a notice/warning requirement and, if found guilty of the violation, the Association may be fined pursuant to the new standards in the rule.   Rulemaking Authority 120.695, 718.501(1)(d)6., (f) FS. Law Implemented 718.501(1)(d)6. FS. History–New 6-4-98, Amended 10-23-18. 

 These disciplinary guidelines were enacted to inform affected parties about the range of penalties which may be imposed for violations, pursuant to subsection 61B-21.003 detailing penalty guidelines in the following categories: Accounting Records, Assessing, Board, Budgets, Commingle, Common Expenses, Conflict of Interest, Converter Reserves, Debit Card, Elections, Estoppel Certificate, Final Order, Fiduciary Duty, Investigation, Property, Records, Reporting, Reserves, Special Assessment and Website.

 

“It is important for community associations and the governing boards to understand the consequences and potential monetary ramifications they will face if they do not abide by these new guidelines,” said Frank J Mari, Director of State of Florida Property Management Association. “Ignoring or not fully compiling with the Florida Department of Business and Professional Regulation’s rules, as well as Chapter 718, Florida Statutes, in a timely manner can have a detrimental effect on an association’s financial standing.”

If an association fails to comply with a Notice of Noncompliance, a civil penalty will be imposed between $5 and $10, per unit, for each minor violation. The penalty will be assessed beginning with the middle of the specified range and adjusted either up or down based upon any aggravating or accepted mitigating circumstances. The minimum total penalty to be assessed shall be calculated according to these guidelines or $500, whichever amount is greater. In no event shall a penalty for a minor violation exceed $2,500, the statutory maximum for a single minor violation. For all other violations (those not deemed to be minor), the penalty imposed is between $10-$30 per unit for each violation and the statutory maximum is $5,000.00. For both types of violations, multiple counts of the violated provision or a combination of the listed violations are added together to determine an overall total penalty.

 

SFPMA – State of Florida Property Management Association is an Organization in Florida that Advocates Educates for Members in the Condo, HOA and Property Management Industry. On behalf of our Industry Members our goal is to keep the industry informed and Provide information for their protection. We have on our Website sfpma.com resources where Board Members, Property Managers can Learn, Network, Engage and Find Top Companies that work in the industry – Search for companies on our Members Directory

Legal Sponsors: KBRLegal.com – Pompano Beach and Palm Beach offices. are the Legal Sponsors for our Association we value the important information and articles they provide for our industry.

 

 

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Are Florida’s Board Member Courses….. Enough Education?

Are Florida’s Board Member Courses….. Enough Education?

  • Posted: Jun 22, 2020
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This weekend a Question was given to us, In this was the lengthy details of a Board that was acting like dictators imposing fines even circumventing the Florida Laws.

Now to be fair if Condo or HOA Docs already include Violations and Fining in their Buildings or on their properties then a Board may violate an owner or owners for the violations. Most do not! even with this every Board must abide by what is written in the Laws of Florida. Below and part of this article is an Article our Friends at the Cooperator published and hit the nail on the head with Boards Power and we feel Lack of Education! 

Condo owners often complain that their board doesn’t do enough, or that the board members aren’t involved as much as they would like in the administration and maintenance of their building. While a disinterested or apathetic board is certainly a problem, going to the other extreme can be just as bad…or maybe even worse. Board members who let their power go to their heads can be a liability to their building community on many levels, but of particular concern is a board that oversteps its bounds and intrudes on the privacy and agency of individual residents.

Understanding the boundaries and limitations of your power is something that every board member needs to realize or else trouble—including legal problems—can result.

Another Question came in: This Board ruled that Washers and Dryers are no longer allowed in the units, Even though there are areas in every unit where water hookup and venting has occurred in the past? The owner stated that there was NO owners vote and this was never placed into the Condo Docs….He did find, The Board made a deal with a company to place machines on each floor of a 14 story building and the board wants owners to use these machines to bring in money to help pay for these! So the board took a secreat Vote and approved this spending money of the owners with no vote!  He asked us is that legal?

 

Knowledge is Power

Balancing what is right and what is expected can be tricky for boards — so much so that sometimes, board members and non-board members alike wonder why people bother to serve in the first place.

“I always tell my fellow board members and clients that if you’re going to be on a board, you are basically a sacrificial lamb,” says Luigi Rosabianca, managing partner of the Manhattan-based law firm Rosabianca & Associates PLLC. “You don’t get paid for it, but by doing so you are providing a service to your building. It’s not only a way to protect your investment, but also your quality of life—but [board members] have to learn what being on a board means, and not to overstep their bounds.”

What can a board member really do about an ongoing noise complaint, for example? What sort of majority is needed if a vote in enacted to change something within the condo or co-op? Can a board impose rules regarding security or visitors?

Questions like these can usually be answered by reading the co-op or condo’s official governing documents, says Al Pennisi of the law firm of Pennisi Daniels & Norelli LLP in Rego Park. “The powers are designated in the corporate documents—the certificate of corporation and the bylaws—and some of the additional powers are listed in the offering plan and amended in the offering plan when it’s a co-op conversion. Primarily, it’s the corporate documents and enhanced by case law.”

It’s essential that anyone who is elected to their board read and understand what they can and cannot do as a board member.  “You need to do it with all the knowledge necessary,” Rosabianca says. “The first thing you need to do is read the offering plan or prospectus as well as the bylaws, which very specifically outline what the board’s powers and limitations are.”

In addition to the documents, a new board member can also get advice and instruction from those already involved in the process. “When someone new comes on, they get instruction from owners, management companies and other board members if they aren’t educated about those sort of things,” says David J. Byrne, a shareholder attorney with the law firm of Stark & Stark, with offices in New York and in New Jersey. “In a practical setting, they don’t always read the documents they should.”

Condos and co-ops have different rules, and their boards have very different powers. Even comparing co-op to co-op or condo to condo will find differences, so just because you served on the board of one building doesn’t mean your current board will operate exactly the same way. Your powers and limitations will be most likely be different on any board you serve.

“The power a board has in a co-op is different than that of a condo,” Pennisi says. “Co-op boards do have more power than condo boards because they control the use of the apartments, they control the sales and leases where in a condo, the unit owner can sell at his or her discretion. Condo boards have less power but both boards can make and enforce rules and regulation pursuant to the documents.”

 

 

Barging In

One of the chief complaints among residents who think their board has overstepped its bounds arises when someone—a super, handyman, or other building staff member—enters their home without permission, usually to check out something like a leak or electrical problem.

“With condos and co-ops you have classic communal living—and with communal living there are certain sacrifices that have to be made,” Rosabianca says. “You are conceding that your neighbors have certain rights to access common elements in the building, and that [building staff] may periodically need to access to your unit.”

Let’s say there is a leak in unit 4F that will affect the owner’s quality of life downstairs in 3F in not taken care of. If the owner in 4F can’t be reached to let building staff into the unit, it is reasonable to expect that the super or repair person will access the apartment to deal with the situation—with or without express permission from the owner of 4F. Upsetting as it might be to think of strangers entering one’s home without permission or supervision, that access is considered reasonable if it’s deemed necessary under the circumstances.

“I always use the ‘reasonableness standard,’” says Rosabianca, “which is vague, but most management companies are really well versed and know what to do and what not to do in situations like these. As a rule of thumb, you should ask, ‘Is this in the best interest of the building?’”

According to Pennisi, co-op documents require you to give the board access to your apartment to make repairs—but that’s not usually the case in condos.

“If there’s a leak in the walls [of your condo,] they just can’t go in and break the door down,” he says. “It has to be a bona fide emergency. If water is leaking under your door and the super or manager has tried calling you and they can’t get in touch with you, they have right to break in and make repairs. I always tell my boards to bring a witness and go in with a camera and take pictures of what the apartment looked like. Don’t go by yourself in case something is stolen and it’s your word against theirs.”

 

Feeling Secure

Security in buildings has become a tricky issue in recent years, and since most governing documents were written prior to current concerns about terrorism and other threats, boards sometimes enact security measures that some residents feel may go a bit too far. But does having an especially robust security program in a co-op building ever cross the line from “overzealous” into “invasion of privacy?”

“There could be ‘too much’ security in a practical way or an economical way but not really from a legal point of view,” says Byrne. “The boards probably have a pretty broad discretion to set rules on security, so although it might seem like they are overstepping their power, they aren’t really.”

Some boards feel it’s necessary to have cameras all over their building, a thorough ID check for all visitors, and building access controls that residents may feel are going too far. Some buildings require key code access or card access, and some use cameras to record people coming and going. While it’s fair to say that most residents get a certain peace-of-mind from knowing access to their building is tightly controlled, others find it intrusive, says Pennisi.

“People say, ‘You have no right to take my picture coming and going,’ or they object to having their Social Security number used as an ID” Pennisi continues. “But a number of courts have ruled that [building rules] supercede the individual’s right, because [buildings] have the right to know who’s coming and going. You can’t publish their information or show the videos, however. That would be going too far.”

 

Keeping Things Personal

When it comes to what boards and managers can do with any personal information they collect on building residents, civil rights and privacy laws have the final word. In short, boards and management are prohibited from making any of that information public.

Unfortunately however, “Things happen like that all the time,” says Rosabianca. “People make mistakes …most of the time it’s just errors, rather than fraud. I’m on a couple of boards where they distribute board applications to all board members, and they include a lot of personal details. You’d like to think that your board members are responsible with the information and will shred the information afterwards.”

If materials are being handled properly, Rosabianca continues, one copy of your personal information should be kept under lock and key at the manager’s office—and no one on the board should be distributing that information, or keeping copies for themselves. Some boards are even policing themselves in this respect by blacking out certain information on sensitive documents they see in the course of carrying out their duties to the building.

Though rare, there have been cases where board members have—either through negligence or ignorance—acted improperly with building information or money. Michael Crespo, president of Citadel Property Management Corp. in Manhattan, says he recently dealt with an unscrupulous treasurer.

“We recently had a situation where, in an effort to clear up the books of a building we’d just begun managing, we asked the board’s treasurer if it would be OK to send out two deposit checks that had been collected for [construction] work and move-in fees several years prior,” he says. “The deposits were clearly for a one-time item, and there really was no reason to keep holding on to them—they were just throwing off the balances, and we wanted to clean it up. The board’s treasurer suggested that we do a journal entry and make them ‘disappear.’”

Crespo says that after explaining that these were real deposits that were owed to shareholders, “The treasurer continued to press the issue and explained that he had done this type of thing at his job all the time. In either case, I explained that we know the difference between correcting a journal entry and sweeping someone’s money under the carpet. Needless to say, the shareholders in question (who were also on the board) wanted their money. We ended up cutting them a check.”

 

FIND EDUCATIONAL COURSES, MEETINGS, SEMINARS EACH MONTH ON OUR CALENDAR OF UPCOMING EVENTS

Power Hungry

While the vast majority of board members take their position in stride and are solely interested in doing what’s best for their building community, some board members do let authority go their head. Most managers and board attorneys have at least one or two stories about boards imposing ridiculous rules on their residents—regardless of whether they actually have the authority to do so.

“Boards do sometimes abuse their power,” Byrne says. “I’ve encountered boards that don’t actually have published rules, yet think they do. There are boards that set unreasonable restrictions on things, or think they have the power to charge residents fines when they don’t.”

Other examples of boards overstepping their bounds and abusing their position include members trying to get family members elected to the board or overseeing applications for people they know, or giving work contracts to friends or family.

“Those are the type of ‘wink-wink’ things you see,” Rosabianca says. “You really want to avoid these types of conflicts. If you are on a board, you should be above the fold. You shouldn’t be soiling your hand.”

Keeping a board in check and on the right side of propriety and the law could be something as simple as pointing out that more rules are not always better.

“We simply like to remind the boards that we deal with that when they implement excessive amounts of rules that infringe upon their neighbors, these rules will often come back to bite the people who created them,” Crespo says. “We’ve seen it time and again: a board puts practices into effect that are very difficult to enforce, and which the very people who implemented them are the ones who end up violating them the most. This is where we like to be the voice of reason. We ask that boards be realistic and use discretion, and ask if they would like these rules enforced upon them.”

 

An owner cannot be fined without first being given the opportunity to be heard. Before a fine is issued, the following must take place:

Steps for a Violation

  • Association/management identifies the violation.
  • Notice of violation sent to owner/resident via a hand delivery or certified mail.
  • Notice must contain the following:
  • Description of the violation
  • Authority in governing documents to cite the issue as a violation.
  • A picture may also be included in the notice.
  • The required time frame to correct the violation.
  • Disclosure of his/her 14-day right to be heard before the fining/grievance committee.
  • Alert fining committee of the violation sent and schedule a hearing.
  • Attend hearing and be prepared to listen to the owner’s stated defenses and/or explanation.
  • Send notice of final decision to owner/resident.
  • In this situation, it would seem that the association skipped or ignored the legal right of an owner to be heard before a fine is issued. The fine is not a legally imposed fine unless the above steps are taken.

 

We need more Education where Board Members who are controlling the best for each and every owner should have to be Licensed the same way as Building Managers are, or financial money managers! What to you think? 

 

 

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PALM BEACH & BROWARD COUNTIES RELEASE NEW OPENING ORDER PROCEDURES AFFECTING COMMUNITY ASSOCIATIONS by Kaye Bender Rembaum

PALM BEACH & BROWARD COUNTIES RELEASE NEW OPENING ORDER PROCEDURES AFFECTING COMMUNITY ASSOCIATIONS by Kaye Bender Rembaum

  • Posted: May 21, 2020
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PALM BEACH & BROWARD COUNTIES RELEASE NEW OPENING ORDER PROCEDURES AFFECTING COMMUNITY ASSOCIATIONS

by Kaye Bender Rembaum

To further address the re-opening of both Palm Beach and Broward Counties new Orders have been issued and are already in effect. Links to each new order are located below this article. In all instances, social distancing and wearing of masks when in public is still advised.

Has your association considered adopting new rules consistent with social distancing policies and wearing of face masks when members are in common areas and common elements? Discussion with your association’s attorney is warranted when preparing such rules for board adoption.

Remember too, so long as the State of Florida remains under a State of Emergency as declared by the Governor (due to expire July 7), the statutory emergency powers remain available to community associations which includes the power to close amenities when based upon the advice of licensed professionals or emergency management officials. With that in mind, after consultation with the aforementioned licensed professionals or emergency management officials, amenities can be closed. Moreover, there is no obligation to open amenities if the board believes, that in its reasonable business judgment, doing so would create an unsafe condition and/ or if compliance with local, state, and federal orders cannot be met.

Our comments to assist your understanding of each of these orders are provided in red text. Stay safe!

 

PALM BEACH COUNTY – ORDER 2020-07

In addition to addressing other re-opening directives, Palm Beach County Order 2020-007 addresses tennis courts, swimming pools along with other amenities. It became effective May 18, 12:01 am.

 

TENNIS COURTS:

Applies to Community Associations

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

  1. 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.

  4. Tennis instruction may be conducted on an individual basis where strict social distancing is followed.

 

COMMUNITY POOLS:

Applies to Community Associations, and while the requirement for on-site supervision is removed, the association is still responsible to ensure compliance!!!

  1. For purposes of this Order, “Community Pools” are defined as any and all pool decks and/or pools, whether of a commercial or noncommercial nature, other than one located on a single family residential lot, a single townhouse unit, or any part of a duplex lot, and which is utilized only by inhabitants of that lot or unit. Examples of Community Pools include, but are not limited to, hotel pools, motel pools, apartment building pools, homeowner association pools, condominium association pools, aquatic centers, or any other facilities that are authorized for use by more than one family.​

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

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

    ​b. Locker room and shower facilities shall remain closed. Restrooms may remain open and 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.​

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

    d. Staff that is authorized to manage the Community Pool, or their designee, including, but not limited to, Community Pool staff, management company staff, volunteers, board members, or any other authorized persons, shall provide notice, either electronically, by mail, and/or by posting at the Community Pool or any other place where messages are traditionally posted, one or more notices indicating that all users of Community Pools shall abide by any and all social distancing guidelines, including, but not limited to, the CDC Guidelines, and that said users of Community Pools bear the responsibility of such compliance and assume the full risk of utilizing the Community Pools.

    e. Staff that is authorized to manage the Community Pool, or their designee, including, but not limited to, Community Pool staff, management company staff, volunteers, board members, or any other authorized persons, shall ensure compliance with all guidelines and requirements set forth in this Order. Such compliance may be accomplished by any reasonable means, including, but not limited to, periodic spot checks, video or other electronic monitoring, and/or compliance hotlines to allow for reporting of violations that are thereafter promptly investigated. In the event that repeated violations occur, staff authorized to manage the Community Pool, or their designee, shall take corrective action, including, but not limited to, closing the Community Pool, limiting access to the Community Pool on a reservation basis only, and/or limiting access to Community Pools to times when staff is present to monitor for compliance.​

    [Emphasis Added]

     

    RESTRICTION OF RECREATIONAL ACTIVITIES IN PUBLIC PARKS, PRIVATE PARKS, AND NATURAL AREAS:

    While not directly applicable to community associations, this section does provide limited guidance as to how similar amenities are being treated by local government.

    1. All park playgrounds, play and exercise equipment shall remain closed.

    2.  Picnic pavilions shall remain closed.

    3.  Use of water fountains is prohibited.

    4.  Basketball courts may be open.

    1. Tennis, racquetball, and pickleball courts may be open.

  • Recreation buildings and gymnasiums may reopen subject to 50% capacity limitations and social distancing guidelines included in State of Florida Office of the Governor Executive Order 20-112 and related subsequent orders.

    •  

    In addition to addressing other re-opening directives, Palm Beach County Order 2020-007 addresses tennis courts, swimming pools along with other amenities.

    It became effective May 18, 12:01 am. Find it HERE or copy and paste this link into your browser:

    https://kbrlegal.com/wp-content/uploads/2020/05/PBC_EO-7-with-attachment.pdf

     

     

    BROWARD COUNTY ORDER 20-10

    Broward County Order 20-10 addresses re-opening community rooms, fitness centers and gyms in housing developments (i.e., community associations) and re-affirms prior pool re-opening mandates. The order went into effect May 18th at 12:01 am.

     

    Attachment 6: COMMUNITY ROOMS, FITNESS CENTERS, AND GYMS IN HOUSING DEVELOPMENTS

    No community room, fitness center, or gym is required to be opened if the housing development does not wish to do so or believes it cannot do so safely and in full compliance with the requirements of this Emergency Order; any decision by a particular housing development is also subject to any applicable internal rules or regulations of that entity.

     

    A. Capacity Requirements

    1. Maximum 50% occupancy. Social distancing requirements do not apply to members of the same household.

    1. Community rooms, fitness centers, and gyms shall be limited to residents of the housing development only. No guests shall be allowed.

    2. Exercise machines, equipment and tables must be rearranged and/or closed for use to ensure at least 6 feet of distance between patrons using such machines, equipment, or tables. Social distancing guidelines provided by the CDC shall be adhered to at all times.

    3. No gatherings or multi-player games (e.g., mahjong, poker, etc.) are permitted in the community rooms between persons who do not reside in the same household.

     

    B. Sanitation and Safety Requirements

    1. Before reopening, the community room, fitness center, or gym (as applicable) must be thoroughly deep cleaned, disinfected, and sanitized. After opening, community rooms, fitness centers, and gyms must be deep cleaned daily.

  • Housing developments shall provide disinfecting wipes, and residents shall be required to wipe down each machine they used after each use.

  • Hand sanitizer shall be available at the facility. Patrons must be informed that they must sanitize their hands when entering the gym and prior to utilizing each piece of equipment.

    •  

    C. Gym and Fitness Center Amenities

    1. Hot tubs, saunas, steam rooms, and shower facilities shall remain closed.

     

    Section 9: Public Community Pools and Private Club Pools.

    Recreational Pool Amenities as defined in Emergency Order 20-08 that were permitted to operate under that order are excluded from the scope of this Emergency Order and may continue to operate subject to the CDC Guidelines and the requirements of Emergency Order 20-08.​  For your ease of reference as per Broward Order 20-08 these include, “pool decks or pools in multi­ family housing developments, condominium developments, condominium hotels, or single-family homeowner associations (collectively, “housing developments”) provided the pool deck and pool are used only by current residents of the housing development; 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:​

    (a)   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; or​

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

    Any use of pool decks or pool areas that deviate from the CDC Guidelines or these requirements remain prohibited.”​

     

    Broward County Order 20-10 addresses re-opening community rooms, fitness centers and gyms in housing developments (i.e., community associations) and re-affirms prior pool re-opening mandates.

    The order went into effect May 18th at 12:01 am. Find it HERE or copy and paste this link into your browser:

    https://kbrlegal.com/wp-content/uploads/2020/05/Broward_EO-20-10-with-att6.pdf

     

    The Kaye Bender Rembaum Team Remains Available To You and Your Community Association.  Please be Safe. 

    1200 Park Central Boulevard South,
    Pompano Beach, FL. Tel: 954.928.0680

    9121 North Military Trail, Suite 200,
    Palm Beach Gardens, FL. Tel: 561.241.4462

    1211 N. Westshore Boulevard, Suite 409,
    Tampa, FL. Tel: 813.375.0731

     

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    Re-opening Amenities In Times Of Uncertainty Part. 1 by Kaye Bender Rembaum

    Re-opening Amenities In Times Of Uncertainty Part. 1 by Kaye Bender Rembaum

    • Posted: May 04, 2020
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    Re-opening Amenities In Times Of Uncertainty pt. 1

    by Kaye Bender Rembaum

    The re-opening of amenities is anything but easy due to the local Orders being promulgated by Palm Beach, Broward and Miami-Dade Counties. Please be sure to review your County’s specific order(s) to ensure your association remains in compliance. These Orders have similarities but are also VERY different.

    A link to the recent re-opening Orders follows:

    –Palm Beach County, Emergency Order Number 5

    –Broward County, Emergency Order 20-08

    –Miami-Dade County, Emergency Order 21020

     

    As to the Palm Beach County Order, take note that that staff and management are responsible to ensure compliance with the Order with respect to the tennis/racquet court facilities, and that one or more facility staff or management must be present at the pool to monitor and “ensure compliance with the restrictions of the Order.” However, it is not at all clear what measures must be taken to “ensure compliance with this Order.” We do not think it would be sufficient to only post a sign setting forth the CDC Guidelines and the additional restrictions in the Order. Although the tennis/racquet court facilities guidelines, unlike the community pool guidelines, do not require personnel to be present at the tennis/racquet courts to monitor and ensure compliance, in our opinion the board should consider some type of responsible monitoring.

     

    Webinar: Association Continuity During COVID-19

    Register Today

    Thursday, May 7, 2020

    12 Noon to 1:00pm

    Kaye Bender Rembaum attorneys Michael S. Bender and Jeffrey A. Rembaum will be a part of a panel discussion presented by Castle Group, in Episode 2 of “Association Continuity and Other COVID-19 Concerns.” There will be a special focus on the re-opening of community amenities.

    Panelists include:

    Craig Vaughan, Castle Group President

    Michael S. Bender, Esq., BCS

    Jeffrey A. Rembaum, Esq., BCS

    Brendan T. Lynch, AIP AAI, Plastridge Insurance, President

     

    Register to Attend HERE

     

     

    With respect to a swimming pool in Palm Beach County, “facility staff or management” must be present at the pool whenever it is open to monitor and ensure compliance with the restrictions set out in the Order, including social distancing and pool bathroom sanitation. If that cannot be accomplished, then the pool and or bathrooms should remain closed.

     

    When opening a swimming pool in Broward County, their Order provides that the pool may not operate at more than 50% capacity. In person supervision in addition to sanitizing gates, railings and showers is required if the pool deck furnishings are left in place. However, by removing the furnishings, the wording of the Order seems to indicate the need to sanitize gates, railings and showers has been eliminated.  If the decision by the Board is to reopen the pool, whether the furnishings remain or are removed a level of reasonable cleaning/sanitizing should be maintained, as necessary maintenance remains a continuing obligation of the association with regard to common elements/areas, which would require sanitizing the pool gates, handrails, doors, bathrooms and the like minimally as the association normally would,  but clearly should be performed more frequently during these times.

     

    Residents of Miami-Dade County will have to wait a while longer to be able to use their association swimming pool because their Order does not yet address opening association swimming pools.

     

    We have heard that certain county staff are giving their personal interpretations of the Order(s) in response to questions from board members. If you think that relying on these unofficial and unauthorized interpretations will shield your association from immunity, think again! It is far more likely that staff interpretations of the County Orders will not provide any protection whatsoever, most especially if a resident contracts Covid-19 and a lawsuit is brought against the association. Until local governments revise their Orders to provide missing clarity, the plain language, conservative interpretation of these Orders should be followed to help ensure your association is protected as much as possible under the circumstances. Remember, too, that an association can have stricter requirements than those set out in the orders, but cannot adopt less strict requirements.

     

    It is also unclear from the Orders how governmental enforcement of the restrictions is to occur by the County or any municipality, as it seems very (very) unlikely that there will be patrols driving around to check on compliance. Even if such patrols did exist, they could not hope to keep up. The more likely scenario is that the self-reporting of violations could possibly lead to monetary or other penalties against the association. Clearly, if the Board is of the opinion that the requirements in their County’s Order cannot be met at this time, it or are removed is certainly within the reasonable business judgment of the Board to keep those amenities closed. However, that said, reasonable business judgment should not be used by a board to make a decision to open amenities where the board believes it lacks the ability to be fully compliant with their county’s local Orders.

     

     

    We encourage board members to contact their association’s legal counsel for guidance regarding reopening any tennis/racquet courts and/or pool facility, and to continue to monitor the guidelines, directives and orders issued by the CDC and the applicable local authorities. Stay safe.

     

    Kaye Bender Rembaum, Attorneys at Law

    The law firm of Kaye Bender Rembaum, with its 19 lawyers and offices in Broward, Palm Beach and Hillsborough Counties, is a full service law firm devoted to the representation of more than 1,200 community and commercial associations, developers, and their members throughout the State of Florida. Under the direction of attorneys Robert L. Kaye, Michael S. Bender and Jeffrey A. Rembaum, the law firm of Kaye Bender Rembaum strives to provide its clients with an unparalleled level of personalized and professional service that takes into account their clients’ individual needs and financial concerns.

    http://KBRLegal.com

     

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    Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols by DONNA DIMAGGIO BERGER

    Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols by DONNA DIMAGGIO BERGER

    • Posted: Apr 17, 2020
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    Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols

    by DONNA DIMAGGIO BERGER

    Contact: dberger@beckerlawyers.com

    CALL ALERTS

    I hope this CALL Alert finds each of you in continued good health.

    The extent to which this pandemic has and will impact our private residential communities will not be known for some time. In the interim, we are urging our CALL members to take all recommended precautions to minimize the potential for community spread in their associations.

    It is not surprising that some of your residents are pushing back against the COVID-19 protocols you’ve put in place for their protection.  As the weeks go on, you can expect even more violations as residents grow even more restless. However, it is important to remember that any individual who continues to use closed common areas, refuses to adhere to social distancing or enhanced sanitization guidelines or who has been ordered to self quarantine but refuses to do so is not committing a trivial violation. That resident is potentially putting his or her neighbors at serious risk of contracting COVID-19.  As such, boards must react swiftly to such violations.

    If you have individuals who have arrived in your community from a hotspot where there has been substantial community spread who do not adhere to the 14-day quarantine order, the penalties can be quite severe. Any person who violates any isolation or quarantine directed by the Department of Health commits a misdemeanor of the 2nd degree punishable by imprisonment not to exceed 60-days and a fine of up to $500.  It is the duty of every state and county attorney, sheriff, police officer and other city and county officials to enforce the DOH’s quarantine order.  That being said, some local officials are stringently enforcing these orders while others are not.  In addition, you may have individuals who are not subject to a quarantine order but have nevertheless jumped the pool fence to continue accessing your closed pool or decided to keep using the fitness room. All of these violations require swift action on your part.

    Please click here to read my latest column in the Miami Herald on enforcing your COVID-19 protocols. If you are experiencing violations of your COVID-19 protocols please contact me immediately to discuss your options.

    ****

    Many of you have been following the COVID-19 legislation Congress is passing and wondering whether the relief being offered will apply to your association.The Coronavirus Aid, Relief & Economic Security Act (CARES) is a $2 trillion relief package which allocates $350 billion to help small businesses keep their workers employed throughout this pandemic.  The Small Business Administration (SBA) will provide loans of up to $10 million which may be forgiven provided workers stay employed through the end of June known as the Paycheck Protection Program (PPP). The purpose for these loans is to allow small businesses to fund payroll and to make their mortgage, lease and utility payments. Unfortunately, community associations do not appear to currently be eligible for these payments as they do not fit within any of the eligible categories:

    • Small Businesses with fewer than 500 employees
    • 501(c)(3) organizations (charitable, religious or educational institutions)
    • 501(c)(19) organizations (veterans)
    • Tribal businesses
    • Individuals who operate a sole proprietor
    • Individuals who are independent contractors

    There is confusion in some quarters about the difference between a not-for-profit corporation and a nonprofit. Community associations fit within the former category as they are not-for-profit corporations.However, community associations could qualify for Economic Injury Disaster Loans (EIDL) which are low interest loans of up to $2 million with principal and interest deferment at the Administrator’s discretion and are available to pay expenses that could have been met had the disaster not occurred and include payroll and other operating expenses. Obtaining this loan may require membership approval so speak to your Becker attorney when applying for same.

    In addition to helping businesses stay afloat, CARES will provide most individuals earning less than $75,000 (based on either one’s 2018 or 2019 tax return) a one-time cash payment of $1,200 with married couples each receiving a payment. Families would also receive $500 per child. People who receive Social Security benefits but do not file tax returns are still eligible for these payments. Individuals who are out of work will receive an additional $600 per week from the federal government on top of the base amount that the State of Florida provides.  CARES also creates a new, temporary Pandemic Unemployment Assistance program through the end of this year to help people who lose work as a direct result of COVID-19 and provides an additional 13 weeks of unemployment insurance. This monetary relief should help ease the financial uncertainties that many of your residents are facing.

    ****

    The Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020 and became effective on April 2, 2020. Among other items, this legislation provides paid sick leave and expanded paid leave under the Family and Medical Leave Act (FMLA).  This legislation:Covers all private employers with fewer than 500 employees. Including community association employers that have fewer than 500 employees.

    • Covers both full and part-time employees. Full time employees receive sick leave of up to 80 hours. Provides part-time employees with paid sick leave equal to the number of hours the employee works on average over a 2-week period.
    • Provides that employees may immediately take paid sick leave regardless of the length of employment.
    • Provides that employees may take expanded leave under the FMLA provided the employee must have worked for an employer for at least 30 calendar days.
    • Protects employees who are taking paid sick leave because they have been diagnosed with COVID-19, experiencing symptoms and seeking a diagnosis, experiencing symptoms substantially similar to those exhibited by COVID-19 or who are quarantined by providing them with a maximum of $511 per day or $5,110 in total.
    • Protects employees taking paid sick leave to care for a family member who is sick or quarantined or to care for a child whose school or place of care is closed by providing them with a maximum of $200 per day or $2,000 in total.
    • The FFCRA requires a community association to provide employees leave to care for a child who is not sick. FFCRA requires up to 12 weeks of paid leave to care for a child under 18 years of age if the child’s school or place of care has been closed. It does not matter whether the child is sick. The first 10 days of leave are unpaid, but the employee can use any accrued paid leave during that time. The remainder of the leave is paid at 2/3 of the employee’s regular rate of pay, not to exceed $200 per day or $10,000 in total.
    • Presently there is no relief for community associations with fewer than 50 employees. However the Secretary of Labor under FFCRA has the authority to exempt small businesses with fewer than 50 employees when compliance with FFCRA would jeopardize the viability of the business.
    • Employers who pay leave under FFCRA will be reimbursed through a payroll tax credit.
    • It is unlawful for an employer to retaliate against an employee who takes paid sick leave in accordance with FFCRA or who files a complaint under FFCRA. The penalties are similar to those provided for under the Fair Labor Standards Act which generally provides for lost wages, liquidated damages and attorneys’ fees and costs to a prevailing employee.

    So many important aspects of our daily lives have changed since Governor DeSantis first declared a State of Emergency on March 9, 2020 and a national State of Emergency was declared on March 13, 2020.  The coming weeks will continue to present their challenges but we are here to help your board and management professionals.For our most up to date information please visit us at www.beckercovid19.com.

     

    Donna DiMaggio Berger

    DONNA DIMAGGIO BERGER

    Contact: dberger@beckerlawyers.com

    Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.

     

     

     

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    COVID-19 Update: Your Questions Answered & Emergency Powers Confirmed by Jeffrey Rembaum’s, Esq. of Kaye, Bender, Rembaum

    COVID-19 Update: Your Questions Answered & Emergency Powers Confirmed by Jeffrey Rembaum’s, Esq. of Kaye, Bender, Rembaum

    • Posted: Apr 02, 2020
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    • Comments: Comments Off on COVID-19 Update: Your Questions Answered & Emergency Powers Confirmed by Jeffrey Rembaum’s, Esq. of Kaye, Bender, Rembaum

    COVID-19 Update: Your Questions Answered & Emergency Powers Confirmed

    by Jeffrey Rembaum’s, Esq. of Kaye, Bender, Rembaum

     

    Rembaum’s Association Roundup

    OUR KBR TEAM OF ATTORNEYS OFFER GUIDANCE TO YOUR MOST PRESSING COVID-19 QUESTIONS

    1. If we have a resident who tested positive for Covid-19 should we inform the entire community?

    If the positive test has been confirmed, while it is ok to alert the entire community that a member has tested positive for Covid-19, it is definitely NOT ok to identify the infected person by name and/or property address.  It is recommended that you contact Association counsel for assistance in preparing or reviewing the notice to the membership.

     

    2. What do we do if a confirmed, infected person in our community refuses to self-quarantine?

    Consider contacting the County Health Department, the local Police Department, Department of Homeland Security, and Center for Disease Control to report them.  Please be reminded that you have no independent authority to force anyone to self-quarantine.

     

    3. Should we close the association clubhouse and gym during the quarantine period? 

    With known infections escalating at a breakneck pace, community leaders must make tough business decisions to protect the health, safety and welfare of community residents, staff and to promote compliance with local, state and federal emergency orders and declarations. We recommend implementing strategies to minimize spreading the disease and taking actions designed to maintain a safe environment.  Prohibiting use of indoor common facilities and amenities generally falls within the discretion of the board of directors, particularly in light of the emergency powers granted to all Boards of Directors, during this pandemic, by Florida Statutes, and is strongly recommended by the state health department.

    Consequently, we recommend restricting access to these facilities as the most effective way to prevent residents from becoming infected after touching surfaces, railings, entry doors, furniture or other items.  This is especially important if residents typically congregate in the clubhouse in close proximity to each other.

    Board members are obligated to act with good faith, with the care of a reasonable person and in the best interests of the community.  It is certainly in the  best interest of the community to maintain a clean and safe environment.  It is likewise in the best interests of the community for the association to promote social distancing in compliance with recommendations of governmental agencies.

     

    4. Should we close the association swimming pool during the quarantine period? 

    As far as we know, there is no evidence that the infection spreads from one person to another in water, however boards must take the same considerations stated above into account,.  Some associations are permitting owners to use the pool after the association removes the pool furniture, so long as each person agrees to remain 6 feet from one another and limit the number of users to less than 10.  This continued use would still require the association to engage in extraordinary cleaning/sanitizing measures for any high-touch areas including railings, access-ways, bath facilities and the like.  The logistics, costs and possible liability concerns often lead directors to the conclusion that shutting the pool facilities is a far better alternative, which is legally supportable and suggested.

     

    5. Should we forgive all assessment payments for 60 days? Should we reduce our budget by 20%?

    Certainly these are unprecedented times. Many communities will be faced with critical decisions regarding the likely financial impact the Covid-19 virus will have on the owners and overall operations of the association.

    However, as board members have a fiduciary duty to ensure that the association  meets its many financial obligations, we do not recommend adopting a blanket policy to forgive all assessments for all owners for a certain period of days (30, 60, or 90 days), nor do we recommend an immediate reduction in the budget.

    The primary reason is that the association must still function in an effective manner, which includes ensuring that its vendors and obligations are timely paid and met, including, without limitation, insurance, maintenance/sanitation of the common elements and facilities, security, and communication services (telephone, internet, cable).  Some communities may have loan repayment obligations as well.  Adopting a blanket policy to forgive all assessments can invariably cause some owners, who otherwise had no intention of withholding payment or paying late, to take advantage of the “amnesty” period, which will only create a negative impact on the association by interrupting the necessary cash flow for community services.

    Of course, it is also important to demonstrate compassion during this period and Boards do have the authority to consider hardship requests from an owner on a case-by-case basis, which can include: agreeing to extend the period of time for an owner to make payment; waive late fees; enter into payment plan; or, to send additional late notices before turning a delinquent account over to legal counsel for collection. The types of hardships to be considered by the Board can include, without limitation, a documented reduction in household income by the owner or an increase in household expenses, as well as documented medical reasons.  Also, if there are items in the budget that are discretionary and vendors for these non-essential services are willing to work with the Board to either temporarily suspend those services or defer payment, the board can exercise its reasonable business judgement to work with such vendors on those points.  It is recommended that you review any proposed policies with your association counsel before implementing them.

     

    6. Should our association restrict guests or contractors during the quarantine period?

    Among the statutory emergency powers of a condominium board is the right to 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 based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board.  Condominium property is defined by the Florida Condominium Act (Chapter 718 of Florida Statutes) to include both common elements and units.

    However, the statutory emergency powers for homeowners’ associations are a little different. They provide that the board may determine any portion of the “association property” unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board.  The term “association property” is not defined by the Florida Homeowners Association Act (Chapter 720 of Florida Statutes), but would seem to refer to property owned by an association, including only the common area and not lots or homes.

    Whether an association may, should or must restrict or prohibit guests or contractors from entering the community due to COVID-19 depends upon the nature of the community, applicable law and, of course, the orders or directives from federal, state, county and local authorities.

    In many condominiums there are shared elevators, lobbies, entry doors, hallways, stairways and the like.  Since residents are in close proximity to each other, and guests and contractors will typically need to share access points with residents, it is likely reasonable to limit guests and contractors in condominiums with such shared areas.  However, exceptions for guests and contractors who are necessary for the resident must be considered. A condominium association must surely allow a resident to have a guest who is necessary for a disability. In addition, residents may also need guests for other essential purposes and they should not be precluded from accessing units.  Of course, these issues need to be evaluated on a case-by-case basis.

    In a condominium setting, it appears reasonable for the board to similarly restrict access and work by contractors, other than those who are performing necessary work, to be determined by the board.  It is not advisable to restrict contractors who are needed to ensure that a unit is fully functional and habitable.  Optional renovations, which are generally unnecessary to maintain or repair the unit, may be  restricted.  It is interesting to note that many of the emergency orders issued by local governments, such as Broward and Palm Beach Counties, provide that contractors are essential workers who may work despite the orders.

    As noted above, the authority of the board of a homeowners’ association to prohibit entry or occupancy appears to apply to common areas rather than the lots and homes.  Furthermore, unlike a condominium, even where the homes are attached (such as townhomes), they typically do not have very much shared areas.  Presumably a guest or contractor of a resident is able to go directly to the resident’s home without contacting or affecting areas used by other residents.  As such, the board of a homeowners’ association may not have as much legal support for a restriction on guests or contractors of residents.

     

    7. Should our association prevent tenants and owners from moving in during the quarantine period?

    Unless there is a future State or local order that further limits or restricts activity in community associations, it does not appear that a restriction preventing owners from moving into a condominium or homeowners’ association community would be reasonable.  The fact is that owners have more rights than tenants, and obstructing an owner from entering their property is likely not warranted unless, for example, the property was destroyed by a hurricane or is otherwise unsafe.  However, it must be recognized that additional use of the shared areas of community associations could lead to the spread of COVID-19.

    As a result, certain restrictions on new leases, particularly new short-term leases which have not been approved, may be reasonable to prevent a “revolving door” situation when there is an influx of too many people in the shared areas of the community. This may also include screening tenants concerning whether they have recently been exposed to COVID-19 and using it as a basis to deny immediate occupancy.  As noted above, there is typically less shared area in homeowners’ association communities and, therefore, a homeowners’ association may have less reason to preclude new tenants.  In any event, all applications for the proposed transfer or lease of a unit or lot should be timely reviewed in accordance with the governing documents for the community to ensure that the association complies with any applicable time frames during which approval must be furnished to the owner or applicant.

     

    Also, On March 27, Governor DeSantis signed an Order  prohibiting vacation rentals less than 30-days. The Order expires 14 days later unless extended.

    We strongly encourage Boards to discuss these issues with your association’s  legal counsel to ensure legal and appropriate measures are being undertaken to deal with this rapidly ever evolving and fluid situation.

     

    Confirmation of Emergency Powers

    Please see the Order from the Secretary of the D.B.P.R. confirming the application of the Emergency Powers for all Boards, as well as the tolling of the deadline for financial reporting requirements for Condominium, Cooperative and Timeshare Associations, during the current State of Emergency.

    Short Term Rental Prohibition Order

    On March 27, Governor DeSantis signed an Order  prohibiting vacation rentals less than 30-days. The Order expires 14 days later unless extended.

     

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