STUART, Fla. – Question: Our residents are very concerned about the coronavirus. Some owners want the gym open and others are insisting that the board close the gym. Some owners want the association to deny entry to anyone with a fever. We also have our annual meeting next week and want to avoid hundreds of people but also want to hold the election. What should we do? – T.G., Treasure Coast
Answer: This has been a constant discussion in our office and around the world. As I write this article, it is very likely that the situation will have changed, and thus I recommend that you consult your attorney as you work through the next few weeks and months.
Broadly, note that Governor DeSantis has declared a state of emergency and many attorneys are supporting the use of the emergency powers statutes in Chapters 718 and 720 to support broadened Board authority during this time. Each community will approach this from a different perspective. Some will support full social distancing, others will support more stringent cleaning regimes, others will support a business as usual approach. Some homeowners associations have restaurants and bars that are subject to the Governor’s order on occupancy and serving alcohol, and others will voluntarily shut down operations.
We are working with clients to implement policies and procedures to continue operating its standard functions. Beyond that, I believe it is important that the board avoid actions or communications which create the impression that the board is responsible or obligated to maintain and/or protect physical health.
As a community association charged with operating a residential community and maintaining property, neither the board nor its managers (in most cases) are designed, trained or built to guarantee physical health. This is not what you do. If you create the impression that you are responsible to keep sick people out, then the board may be assuming a duty that is not in the association’s purview. You will most likely not do this perfectly and assume unnecessary liability that may not be covered under your insurance policies.
Because of these limitations, we recommend reiterating to the owners that they must contact their individual health care provider if they have any questions or concerns over their own health, or their involvement in any community activity or use of common areas. The association can take precautions such as closing or limiting facilities, implementing additional cleaning protocols, making hand sanitizer available, providing signs and instructions to wash hands, but the owners should understand that the association cannot serve as a health care provider or guarantor.
More specifically to your question, we are seeing many communities limit or close amenity access and community gatherings. By the time this article is printed, it may be mandatory. The board should consider whether it wants to follow CDC recommendations concerning large group gatherings and use of common facilities. The board has the authority to limit access, limit hours, or close community facilities during this time.
Finally, we are recommending that annual meetings either be rescheduled or limited to necessary personnel, which will typically include the board, management, and candidates in the event of an election. If you do not have any business to conduct or an election, you could also cancel the meeting under emergency powers. If you have limited attendance, you could also consider providing a conference telephone line for owners to attend by telephone, live stream or video tape the meeting for real time viewing or future viewing, or use a virtual meeting platform. If you have an election with limited attendance, we also recommend keeping all election materials in a secure location to ensure a proper recount is possible down the road.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
© 2020 Journal Media Group, Steven J. Adamczyk