By Rachel Brown Hackney
An annual update to inform Siesta Key Condominium Council (SKCC) members about changes in association laws took a different tack this year.
Sarasota attorney Dan Lobeck opened his January 12th program with a focus on issues related to the COVID-19 pandemic.
If association leaders learn of a resident who has tested positive for the virus, Lobeck advised the SKCC members, the association can inform the other residents that the illness has been reported, with the hope that the resident will self-isolate until he or she no longer is contagious.
“And, perhaps if you’re a large enough community,” Lobeck added, association leaders can reveal the area of the complex where the ill person resides. Nonetheless, he warned against providing details that would enable someone to figure out exactly where the infected person lives.
“There’s something in the Florida Constitution that broadly entitles people to privacy,” Lobeck explained.
Further, Lobeck recommended that associations consider implementing a rule that requires that any resident diagnosed with COVID-19 remain in isolation until the person is well again.
Yet another issue related to the pandemic, he continued, involves financial hardship. For example, Lobeck said, if a worker in the hospitality industry lost his job and is having trouble paying bills, some association leaders may feel they should “go easy” on collections of maintenance fees and special assessments. “You heard the exact same kind of thing [during the Great Recession],” he pointed out. “I would hope that associations have learned their lesson from that.”
If associations allow leeway in their collections of fees from persons who have lost income, Lobeck said, other residents without financial constraints often get angry, alleging that the persons who are not paying are getting a “free ride.” Moreover, he noted, “It becomes more challenging,” not just for an association board but also for the condominium owners who are in arrears, “to dig themselves out of the hole that they had created,” if payments are not kept up-to-date.
Lobeck also explained that because the State of Emergency for Florida that Gov. Ron DeSantis issued in the spring of 2020 is still in effect, each condominium association board has its own emergency powers. That results from a state statute that was implemented to deal with hurricanes, he noted. “It says you have the right to close facilities. … That would also apply to the board’s ability to close common facilities, such as gyms or a recreation hall.”
Florida’s Condominium Act gives association boards “the ability to adopt reasonable rules and regulations regarding the use of common facilities,” he said. Any judge hearing a case challenging such action likely would rule for the association board, he continued.
Having specialized in condominium law for the past 40 years, Lobeck said, “It’s been my advice to clients that they have wide latitude.”
In regard to board sessions while the pandemic continues, Lobeck pointed out that even before the pandemic began, a state statute gave associations “the right to conduct meetings with participation allowed by … electronic means.” The idea when that was passed, he said, was that people could call into meetings. In recent months, he noted, Zoom has become a popular platform for all types of sessions — including the SKCC meeting that afternoon.
However, he cautioned, a person still has the right to participate in an association board meeting in person. Invariably, he added, association bylaws call for the publishing of a notice about the date, time and place of any board meeting. “It might be argued that cyberspace is a place,” he said, but such a contention is likely to fail.
If an association board plans to conduct a meeting in person, Lobeck pointed out, it can choose a place large enough for “abundant social distancing,” and masks can be required for the duration of the meeting, along with “very aggressive disinfectant procedures.”
Still, he recommended association boards conduct “hybrid meetings,” so persons who prefer to participate via a program such as Zoom can do so, and those who would prefer to attend in person can do so.
Concerns about therapy, or emotional support animals
Turning to a different topic, Lobeck noted that the U.S. Department of Housing and Urban Development (HUD) has provided new guidance clarifying that a certification form someone can buy online to try to prove that the person has need of a therapy animal “is worthless.”
Further, he said, HUD has said that requests for certification regarding an animal other than “common household animals” can be denied. Dogs and cats are considered common household animals, Lobeck explained, while — for examples — kangaroos, monkeys, and reptiles other than turtles are not.
Moreover, he continued, HUD “has created a substantial burden” for a person with a disability to demonstrate that that person needs a therapy animal. Additionally, he said, a condominium association has the right to require that a person provide documentation from a doctor or a comparable health care provider that the person needs a therapy animal.
A new state law regarding emotional support animals says that a person has to have documentation from a health care provider who can attest that the person has entered that provider’s care and that the provider has been aware of the person’s condition for a period of years, Lobeck added.
The best way to deal with the issue, Lobeck said, is for an association to create its own form then require that owners use it. The form should call for documentation of “substantial impairment of one or more major life functions,” he said, as the basis for the person’s need for the therapy animal.
Further, Lobeck explained, “Federal law requires that you allow a person with a disability-serving animal … to be allowed to take that animal anywhere the owner can go,” unless it is a place where health regulations apply. For example, he said, a therapy dog can be allowed on a pool deck, but not in the water.
Sarasota attorney Dan Lobeck speaking to the Siesta Key Condominium Council (SKCC) members.