Attorney offers lots of news for condominium associations

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By Rachel Brown Hackney

Attorney Dan Lobeck addresses Siesta Key Condo Council

On Jan. 14, Sarasota attorney Dan Lobeck updated Siesta Key Condominium Council (SKCC) members on actions the 2019 Florida Legislature took that pertain to condominium associations.

At the outset of the SKCC meeting, Lobeck — who is with the firm of Lobeck & Hanson — made it clear that he believed last year’s legislative session “was especially light on association law amendments,” as noted in the SKCC’s minutes of the Jan. 14 meeting. Some of the highlights of the session, the minutes noted, are as follows:

• The deadline for associations with buildings over 75 feet in height to complete the retrofitting of fire sprinklers has been pushed back to Jan. 1, 2024. In lieu of sprinklers, the law allows a condominium complex to have an Engineered Life Safety System (ELSS), Lobeck said. “If you don’t have sprinklers installed by that extended date, you have to have an ELSS in place,” the minutes reported. An ELSS must be prepared by an engineer experienced in fire and life safety issues, and it must have the approval of the county fire marshal, Lobeck explained. The system may include such features as smoke control equipment, the compartmentalization of sections of the building, and sprinklers in common areas.

• In discussing assignment of benefits (AOB), Lobeck explained that this is a contract between an association and a contractor hired to undertake repairs. The association’s insurance benefits are assigned to the contractor, and the contractor agrees to accept the benefit for payment in full. The association has the right to rescind such contracts within 14 days from the date when work began, or within 30 days if the work has not started.

In addition, Lobeck said, some limits exist in regard to what a contractor can be charged during an emergency.

Assignment contracts cannot be pre-arranged, he added; “they must be arranged specific to the event.”

• Online notarization via teleconferencing has been approved.

• The smoking of medical marijuana has been approved. However, Lobeck emphasized, under the guidelines of the state’s tobacco legislation, boards can restrict all kinds of smoking in common areas, including the smoking of marijuana. “It is possible for boards to restrict smoking on patios and balconies if it is deemed that the smoke goes into other units’ space,” the minutes said.

Condominium associations also have explored the possibility of banning smoking throughout the premises, Lobeck noted.

All of these potential restrictions must be weighed against the duty to provide reasonable accommodations for persons with disabilities. This requirement almost — by definition — applies to persons who qualify for medical marijuana, he pointed out, if they provide an appropriate certification to the association.

Lobeck also offered an outlook for potential legislation during the 2020 session, which began on Jan. 14, the minutes said.

• In regard to short-term rentals — those for less than 30 days — Lobeck explained that, in practice, the county allows such rentals on Siesta Key at complexes where it has been a long continuing practice.

Further, county Code Enforcement staff cannot enforce the county ordinance on the basis of advertising alone. For example, he said, just providing a Code Enforcement officer a copy of an Airbnb advertisement for a Siesta condo is not sufficient. The county ordinance can be enforced only through the production of evidence of an illegal rental.

To get around the advertising issue, he continued, the County Commission approved an ordinance that prohibits advertising for short-term rentals in districts where such rentals are not allowed by county zoning regulations.

All the above does not limit the ability of associations to restrict short-term rentals.

• Division arbitration may be eliminated in favor of compulsory mediation, he added.

• Regarding term limits for association directors: Service prior to July 1, 2018 would not be counted in determining the length of a director’s service, if one bill that has been filed wins final approval.

During the question-and-answer session after his remarks, Lobeck tackled questions seeking more details. He offered the following answers, the minutes continued:

• Certain types of conduct that might be offensive to residents, such as smoking (tobacco, marijuana), and activities with pets possibly could be challenged under the “nuisance” clauses in association documents. “Obviously, it would be very helpful if such conduct was specifically regulated in the condo [documents],” the minutes said.

• Term limits also apply to developer directors.

* Even if sprinklers have been installed, a condominium complex must have an ELSS in place by Jan. 1, 2024. “Of course,” Lobeck noted, the Legislature may elect to have that deadline extended.

* Under current legislation, a director who has a conflict of interest must recuse himself or herself from voting on the applicable issue. Further, the director must absent himself or herself from the meeting (Florida Statutes 718.3027), though the director first may make a presentation about the activity at the heart of the conflict of interest if the director is a party to that activity.

• Service animals: The Americans with Disabilities Act (ADA) governs the rules for public accommodations, restaurants and transportation services. Such entities cannot demand to see certification from a licensed professional in regard to the animal. However, condominium complexes are subject to the regulations of the Federal Housing Authority (FHA), so their association boards can require documentation.

Additionally, service animals cannot be excluded from any place a disabled resident may go, such as a pool deck, but it can be excluded — when required by law — from the pool itself, for example.

Moreover, Lobeck said, an accommodation for an animal is for the disabled resident who owns the animal, not for anyone who may be keeping the animal in that person’s absence. ADA rules require establishments to take the initiative to accommodate disabilities, Lobeck stressed. The FHA requires condo associations to honor accommodation requests as received, he pointed out.

Lobeck cited lawsuits that had been filed to demand that websites accommodate the blind, for example, and provide wheelchair ramps. “Aggressive lawyers find these lawsuits to be lucrative sources of income,” he added, according to the minutes.

“Therapy (feel good) animals must be accommodated if a doctor or other qualified professional provides a certification that the resident has a disability as defined by law and that the animal will reduce the disability or its symptoms,” the minutes said.

• Drone use can be prohibited or regulated by associations. As with other restrictions, such regulations should be included in the condominium documents or in rules adopted in accordance with those documents.

• The beach belongs to the public up to the “historic high water line,” Lobeck pointed out.

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